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Section One

Meth od Versus Metb odology


CENTRAL THEME running through this collection is that it is impos-

siblc ro understand the issue of method, without also considering
how methods are used by different theoretical traditions: this is the
distinction between 'method' and 'methodology'. This quickly became
apparent in the workshop we held at Ofiati, in that from the outset there
was a lively dcbate bctween sociolegal rcsearchers committed to what we
described in chapter 1 as the epistemological positions of positivism and
interpretivism. This is also often described in textbooks as the action-struc-
ture debate, and developed out of mcthodological debates that took place
in the 19th century over how sociology should develop as a science.
It is worth noting be{ore reading the two papers in this section that there
are many positions one can take in this debate, and one argument favoured
by many contemporary social theorists is that one can move beyond the
divisive paradigm wars of the past, and build a social science that can
address both structure and action. lVhatever one feels about this recent
attempt to provide sociology with an agreed frame*'ork in which it can
advance and prosp€r as a science, most of the socio-lcgal researchers who
anended this workshop did not share this vision. The structural tradition
was represented by a group of researchers whose work is influenced by the
systems theory of Niklas Luhmann. The action tradition was represented by
a group of researchers influenced by symbolic interactionism and eth-
nomethodology, It was clear that each understood the practice of research
very differentlS and in particular how one should collect and analyse qual-
itative data.
The two papers in this section by John Flood and Klaus A Ziegert
give a flavour of the arguments used by each side, bur rhey should also be
seen as representing different styles of sociological work which are charac-
teristic of the two paradigms. Klaus A Ziegert writes in the formalistic,
theoretical sryle favoured by theorists like Luhmann and Talcott Parsons
who are seeking to develop a thorough and 'obiective' understanding of
society. It is also written using a theoretical terminology (telns such as
26 Rczt Batakar dnd Mat Tr,ttcrs

'autopoiesis', '['inar1' codcs', 'self-refcrctrce' and 'node') tlrat onc cirn only
properly undcrsrand by alrcady knon,ittg sornething about tltis rheoretical
rradition. Although tro brief account of Luhntannt sysrems rheory could do
it justice, it might nonerheless be helpful to introduce some of its features,
which are methodologically relevant and of interest to rhe discussion here,
very briefly.
Luhnrann places the idea of self-reference at the heart o( autopoiesis,
or his theory of operatively closed systems.r It is important to note that
autopoiesis is not a theory of specific obiects, processes or relationships,
but a theory thar observcs reality or systems using the specific distinction
of sysrem/environment. Hamberto Maturana and Francisco Varela orig-
inally coined the concept of autopoiesis within theoretical biology to
describe the self-reproduction of living cells through self-refercnce.l
Maturana and Varela postulated that living systems maintain their
autonomy and unity through their very own operations, which are based
on controlling the selection of external causes (required for their survival
and reproductiorr) through internal operations. Thus, autopoiesis indi-
cates the process characteristic of life by which systems organisc them-
selves out of disorder, forming a responsive, sel(-reflecting, self-maintain-
ing network.
Luhmannt systems theory transcends the classical understanding of
object/subiect by regarding communication (and not 'action') as the basic
element of any social system. He breaks with traditional systems theory o[
Parsons and descriptions based on cybernetic feedback loops and structural
understandings of self-organisation of rhe 1950s. This allows him to work
towards devising a solution ro the problem of the humanised 'subiect'.
Perhaps the most challenging idea incorporated in the theory of auto-
poiesis is that social systems should not be defined in terms of human agency
or norms, but of communications. Comrnunication is in turn the unity of
utterance, information and understanding and constitutes social systems by
recursively reproducing communication. This sociologically radical thcsis,
which raises the fear of a dehumanised theory of law and society, anempts
to highlight the fact that social systems are constituted by communicative
euents, and reproduced by recursively using events to produce events.' [t

I According to KA Ziegcn, N Luhm:nn! systcms thcory was brandcd as'auropoictic thco-

ry' by othcrs. Autopoiciic means self<rcation io Crcck, but also implics scl(-rcfcrcocc Sec KA
Zicgcrt, 'Thc Thick Dcscription of Law: Ao Introduction to Niklas Luhmann's Thcory of
Opcrativcly Closcd Systcms' in R Banakar and M Travcrs, (cds), Az Inttoiluction to l-ap and
Social Theory lOxlord, Han Publishine, 2002).
r HR Marurana and FJ Yarcla, Autopoi*k and Co8zirioa (Boston, MA, Rcidcl, 1980).
'G Tcubncr, 'Juridification: Concepts, Aspccts, Limits, Solutioos' in G Tcubncq (cd),
lwidification ol Social Spheres: A Coftparutiue Analysis ia the Arcds of Labout, Colorate.
Attirrust atd So.ial Welfdre tna lBctlin, W^lter de Gruyter, 1987) J.
Mctliot \/crstrs Meth'xlttlogY 29

nleilns thrt rvhat rurrrs law into an inregrated rvhole is rrcither legirl ttorttrs
nor social acrors and institutions, lrut the uniry' of legal conrtnunicariorts.
Front an ernpirical point of view, the communicative evenrs'occur \r'lhenev-
er people express rhernselves in rerrns of lawful/unlawful, legal/illegal, and
*'henever their comtnunicative acts are directed towirrds clainr-nraking and
claim-defending'.t It appears as if sysrems theory defines and positions
empirical data by the application of what is ultimately a set of 4 Priori the-
oretical assumptions and propositions. This point is, however, refutcd by
Ziegert, who on rhe contrary argues thar systems theory is better equipped
for conducring genuine empirical research than, {or examplc, thc grounded
rheory approach. We can perhaps berer assess the implicati<>ns of doing
research as suggested by Ziegerr when we compare it with the approaches
of the interpretive traditions, which are described hy John Flood in this sec-
Flood writes in the essay sryle favoured by Arnerican interactionists like
Everett Hughes, Herbert Blumer or Hou,ard Becker.s One finds in this tra-
dition a distrust o[ scientism and abstract terminology, and this is reflected
in how researchers present findings and write about methodology.
Flood\ piecc can be seen as a characteristic attempr of interactionists,
particularly rhose associated with the 1940s Chicago School, to side-step
the epistemological and theoretical debates that rrouble or excire other
social scientists, and to present research as sinrply what one learns [r1'
observing different groups and institutions at close quarters. However, the
argument is slightly more poinred than this. Like other interactionists in this
tradition, Flood believes that too much theorising is bad for sociological
research. He notes that \he blinders imposed by the systems approach are
desensitising, and the core of ethnography is to be sensitive to everything
around you, not just segments of theoretical reality'. The central interpre-
tive message is that rhe objective of research should be ro address how
members in the group being studied understand their own activities,
whether these are barristers' clerks or managers in the Financial
Ombudsman Service. This is not possible for researchers who are interest-
ed in building elaborate theories which are presented as superior to our
ordinary, common-sense knowledge ahout the social world.
Ziegert\ piece takes the.opposite view, in that he argues that theory is
necessary to understand qualitative data, and that the descriptive work
favoured by Flood fails to address the underlying structures that shape and

' M King, 'Th€ 'Truth" About Autopoicsis' ll993l2O lourxal of Lau and Society 218,
224-2.5, Alsosee G Teubner, Lau ds at Artopoietic Systent (Oxford, Blackwellr l99J) 225.
'See E Hughes, The Sociological Eye (Chicago, tL, Aldine, l97lll, Recker, Howard
Sociological Wor& (Chicago, lL, Aldine, 1971); and H Blumer, Synbolic lnteractionisrrr:
PerspectiL,e and Method (Englewood CIiffs, NJ, Prentic'c-Hall, 1969).
J0 Rcrc Banahar and Max I'rauers

deterrnine rhe nature of law.6 Whar is perhaps most striking about the chap-
ter, and characteristic of all srructural rhcoretical approaches, is that he
presents autopoiesis as a map that allows one to see society as a whole, with
all the individuals and institutions on a grid or matrix which enables the
analyst to zoom in or zoom oua, and to study how institutions have devel.
oped through history. The assumption rhat the :heorist has an objcctive
vantagc point and can invcstigate society in this way is shared by thinkers
like Dtrrkheim and Marx, trut is opposed to the interpretive rradition in
which one can only address how different groups and individuals under-
stand the world around them, or to continue *.ith the metaphor, how thcy
make the ir own maps.
The implications for method are most clear in the diagram Ziegea pres-
cnts for a comparative proiect that looks at how law is changing as an
autopietic systcm in Cifferent societies. At the workshop, he prescnted a larg-
er and more elaboratc diagram in which riny figures of individuals were pre-
sented as part of larger systems. He proposed that one could investigate
these relationships scientifically by zooming in and interviewing rwo reprc-
sentatives from different groups, and use this data as part of a theoretically-
drivcn analysis. One can, howevcr, see how from an interpretive persp€ctive,
this does r:ot adequately address how lawyers, ludges or other social actors
understand their own social worlds. The objection is partly on theoretical
grounds since autopoiesis, as a structural approach, prescnts individuals as
obiects thar are shaped and moulded by social systems and structures,
whereas interpretivists see society as only consisting o{ individuals.
However, it also concerns how one chooses to study the world. It is sig-
nificant that structural traditions usually favour..ihodt lik. statistic;l
analysis (see Ziegert's favourable commcnts on rhe Norwegian sociologist
Stein Rokman) or strucrured inrerviews to invesrigate social life. They are
not inter€sted in the extended ethnographic fieldwork advocatcd by sym-
bolic intcractionists like Becker and Aughes which, according to eth;ogra-
phers, allow one ro obtain a much richer and more complex ,nd.rrt"nJing
of different social worlds.

- Zicgcn!
mein rargcr is thc tclatcd rradition of grounded thcory, which was dcvclopcd by
Glascr and Hughcs'studcnt Ansclm Strauss. Sec BG Giascr and A Strauss, Tle
_GtoundedTh.ory, Sttut.Bics fot eucliratite Research lNcw york, N! Aldinc dc
Uruytcr, 1967) end for a practical guidc A Strauss and J Corbin, Bdsics ol Oualitatitc
IksaarrE (London, Sagt, 1990). This was intcndcd to trc a morc scicntific vcrsion o-f intcrpre-
tivc 1656"..;'r rat involvcd systcmatic procedurcs (o. organising qualitarivc data into themes
or codcs..Thcy deGnded inductivism Ln scicntific gror;dr rhc deducdve procedure
Iavourcd.by quantitative an:lysts who typically sct out ro tcst "giir.r
liypotheses through csiablishing
c"usal rclationships bctwccn variablcs. Zicgcrt is particularly concemed to criti-cisc groundei
thcory in $is chaprc., sincc h has bccomc popular in Ccrmany. Intercsrinel* his main com-
plaint. is thar groundcd thcory does not produce scientific, structurat rheor"y'of thc kind sup-
plied by thc autopoicsis traditionl whcrcis a grounded theory rcsearchcrrnight r.spond th'rt
this is cxactly rhc kind of a priori deductivc thcorising they wanr to challengi.
Metbod Yersus lt4ctlndologl' 3l

. l-hesc.trr'<t plpers, there[ore, raise general issues that are immensely dif-
ficult.and complex, und have generat.i protr".t.d debates about rnethod in
the philosophy of social scieice fo, or., r*o hundred years. One can, in
[act, argue that most discussions today ab6ut how one ionducts social sci-
ence rescarch, and whether objecriviry is possible or even desirable, started
with these l9th century debates on whet'her scciology should be a science
in the same way as naturalscience. Durkheim and Weber are the besr exam-
plesof scholars who developed well-thought out methodological stat€mcnts
on these issues, and most 20th century th;orisrs have also eigaged with, or
artempted to transcend rhe act:on-struciure debate.T ln sociolo!5 this is to
some extent old-hai, and one can argue about whether people *ho ,rgg..,
this are trying ro declare victory for their own position, rather than
acknowledging rhar there is always another side in rhi; kind of foundation-
a_l debate. Although there are many positions on the issue,
no one would
dispute_that it has not only generated a great deal of productive and inter-
esting. theorisinB, hut also a great deal of empirical research. In our view,
ihere is nor nearly enough discussion or debate abour this issue in socio_
legal studies, so we are pleased to publish thcse rwo merhodological state_
ments rhat are relevant to any research proiect.

For discussion on how Wcbcr's mcthodological writings are rclevant to postmodcrnism,
see N Cane. Ma-r Weber and postntodenr TDeory (Basings6ke, prls."";, ,00i1.

S o cio - Le gal Eth no grap h y


'Wecanno, thfuk of any obiect aport ftont the possibility ol its coutectfun
with othet thinEs' (Wingcnstcin)


THNocRApHy TAKEs us back to our roots where social interaction is

at the base of our research. Hobbes talked of thc probtem of ordcr as
the most basic and this, in essence, is what we study. N{any research
methods have been devised to cope with the problems of social research-
social surveys, observation, interviewing, social experiments-but only one
gives us insight into the richness of social life. Ethnography makes us simul-
taneously stand inside and outside the mise en scize as we research. It is
both a literary and scientific endeavour without privileging one over the
I make no apology for starting this essay in such a bald vein. But part of
the reason for my so doing is that contcmporary mcthodology has suffered
a diminution of scale. For much of the time the empirical is ignored for the
benefit of the abstract. The abstract becomes a palimpsest on which anything
can be inscribed and argued about without recourse to social interaction.
often the research process is truncated so rhe'essential' work of theoris-
ing can be undertaken. Methodology needs to b€ brought back into the
mainstream as an activity that is seen as central to the research enterprise.t
My argument is not against theory itsel{, but rather one where theory is to
be viewed as part of the research process, not its goal nor necessarily its
staning point. Even the hyper-theorists such as Levi-strauss and Bourdieu
did fieldwork in Brazil and Algeria, respectively, before retreedng ro the
Collige de France.

I Thc cffects of this can bc sccn io the e{fons o[ rcsearch funders

to attemot to increase the
future numbers of trained rcscarchers. ln their eyes therc will soon bc a research deficit.
34 Jcthn Flood

Erhnography has irlxrur it an:rnarchic armosphere rhar sidcstcps systerrr

building. lt is conrextrral, dynanric, reflexive, rhat is, ir is open t,r all sorts
of stinruli. This is not to say that ethnography cannor produce sysrenlatic
results, but ir is not overly concerned wirh questions of validity and relia-
bility in the conventional wayi say, that quantitative approaches are. The
research process for ethnography is different from orhers: it is tentative,
multi-textured, open-ended anci discursive. lt starts from a point of lcarn-
ing and enquiry that recoBni3es we know little rather than supposing a scate
of knowledge which is subject to ex post facto ratification.
Systems theorists who see the world as a series of texts will find ethnog-
raphy an uncomfortablc mcthod. The blinders imposed by the systems
approach are desensitising whereas the core of ethnography is to be alerl
and attentive to everything around you not iust particular segments oI the-
oretical reality.
Law, as a topic for research, raises exciting questions in this context. It
is situated at the intersection of life and theory. The problem is that mosr
lawyers do not realise it. For them life is constructed out of the narratives
told by ludges, some of whom occasionally have a literary approach, as did
Denning. These narratives are proxies lbr the real world. It took me some
time hefore I realised that the worlds constructed by iudges were often illu-
sory. For example, as students we religiously learn about the snail in the
ginger beer bottle and learn to contro! our gagging reflexes, but in fact-we
do not know if that snail existed or not.2 As heuristic devices, law reports
have utility; as devices for engincering social action, they are disturbing.
The key for system theorists is that law appears to be a system as a resttk
of the ways it is constructed by its pracitioners. Judges and lawyers endow
law with an authority that it cannot sustain under examination, especially
from the ethnographer.
In my guise as a first-year law student I encountered this difference rvith
drama. One of my teachers, Michael Zatder, was fond of engaging his stu-
dents in his research proiects. We did not always know what we were doing
or what the repercussions of what we were doing would be, but we enioyed
the immediacy and the action. For example, he decided to find out if police
stations had all the necessary information on hand for those brought into
custody. This was in the 1970s. The English Legal System class was organ-
ised to fan out through London and enter as many police stations as possi-
ble at roughly the same time and ask to see this information. Since no one
had warned the policc stations we were coming, the desk sergeants were
shocked and not very pleased when many young persons arrived and

r For interesting insighrs into one of the most cndtrring legal cases scc Donoghue u
Steuenson U9321 AC 562; and thc Scottish Council of [:w Rcporting Donoghue u Suuenson
digital resourccs page at <http://www.scottishlawrcports.org.uk/resources/kcycascs/dvs/
Socio-t.agal EtbuograPl:y 3S

detttandcd t() see tlreir hooklets. Sonre of us were allor,,,ed rr> scc rlreru
tttrttty,o[,rts were evicred, in parr because rhe srarions did not havc any, and
rhe telephone lirres buzzed berween Scotland yard and rhe LSE. h was furr
if uncertain as ro how it rlould rurn our.r Ha;ing seen how exciting field-
work could be, rhe srudenrs reacted extremely dif[renrly. There weri those,
like nryself, who beearne captivated and there were those who were horri_
fied.by the experience and quickly reopened their law reports never ro lcave
the library.
I now teach a course in research methods to, largely, law graduare sru-
dents. Very.few have any familiariry with formal p-..i.n,urio",l, of theory
and methodology; the scienrific
-.ihod i. an unriad carechism to them.
Perhaps the mosi difficult norion for rhem ro grasp is that of the research
question. I try to tell them that research questions are a guide to influence
their thinking about their research topics, somcthing thaiwill set up inter-
rral arguments thar they can carry on in rheir..r.".ih. Eu"n though t
tinue to teach them about the role of theory and the various merh;ds they
can.use. to do their research, my main concern is that they generare
an inrer_
esr in their topics and ask questions because these will iti-mulare them fur-
rher. What I rry to avoid is overbearing them with discussions about
necessity for. consrructing theorerical frameworks as a starting poinr
their research. lf they do srarr ar rhis point the usual result i ihrr th.y
beconre stuck in a rhroreiacal quagnrire irom which it is difficult ro escap€.
For exarnple, Donald Elack! atrempt to impose a false natrrral science
on social science fits in with this style oi thinking.. One of thc
ioys of
ethnography is thar it is not enslaved by theor.tic"istraitiacket. Therefore
it does not encounrer the definitional problems of.structural coupling, or
'babitu{. lt opens the field to many interpretations. The essence then o(
ethnograph), is its liberaring power. In the field of law, liberarion is essen_
tia l.
rVhat follows_is part biography
and part analysis. My own journcy into
*h::g1?.phl and my feelings about it aie p.oju., of my firsi encounters
and disillusionment with academic law. "
Originally I was drawn to law by a feeling that law possessed the power
to effecr change, to help_ rhe dispossessed an? heal societyt ills. Many
dents srart with rhese ideals in mind. Scott Turow's Oze L chroniclis
first year law studenrt iourney from search for justice to the Socratic
plea-sures of legal reasoning. Appeals to
iustice are mer with scorn from the
professors.' As the students engage with the minutiae of the law reporrs,

' As a rescarch exercise, thcre are innumerable problems with rhe way rhis exDcrimcnt was
caried our. Bltt to unravcl this is not mv purposc herc.
'. D Black, Thc Behauior o/ lza, (Ncw'yoik, Nt Academic press. t980).
-. .5 lurow, Onc L: TLe Tubtlent True Story ol a First year At Han,ard l,aw School lNew
York, N! Farrar Straus & Giroux; Reissue, li77).
36 Johu Floot!

they revel in their command of the luanced disrincrion, rhey are won over,
they become adepts. In my case the law reports lacked life and they wcre
soulless. The potential for transformarive engagelnent slithcred away and I
was left feeling deprived. Law was failing me and I was failing it. The way
I have dexribed this so far already carries the portcnt of some cpiphanic
moment. lt came when I found myself rclecting all the courses n€c€ssary to
become a lawyer, rhat is, those that gained one ixemptions from profcssion-
al examinations, and taking insteal a range of diveigent or, in ih€ cyes of
some, 'marginal' courses. Chief among them was the anthropology of law.6
Here law ceased to be an idealised form and became instead a variety of
forms and acrion by and through which people made sense of everyday lifc,
which of course is saturated with normativJ activiry.7
The anthropology of law revealcd two things ro me: that law rvas not
something imposed from above nrainly by a state; and rhar anthropologists
carried out their research in markedly different ways to convcntional
lawyers. Anthropologists felt it necessary to cngage with everyday tife and
the people who iived it. They werc.he Eneiriki.t That law was constituted
by everyday concerns opcned an array of possibilities for its analysis.
During thc course I focussed on a little-known group of people known as
the lrpchas in Sikkim who apparently practisea four religions simuitane-
ously anC livcd by rheir agricultt ral cycle.' Linearity was alien ro them as
life constantly repeated itself in cyclic fashion. Their acephalous society,
thtough bonds of reciprocity, maintained an equilibrium that made couns,
officials and police redundant. Nevertheless orjer was maintained and pun-
ishment could be meted out if necessary. Gorer lived among the Lpches
recording their daily activities, lisrening ro their stories and m1ths. I felt I
understood more profoundly the procises of Lrpcha social order and dis-
puting than I understood of my own society. By comparison with the
anthropology of laq law itself represented itself as an instrumental set o[
disembodied and narrow techniques. The anthropology of law opened up
to me the virtual impossibiliry of atrempting to confine law to state-backed
action. We lived in a normatively pluralistic world.r0

' Thc. coursc wes evcntually publishcd as S Rotcm, Odet dnd Disp e: An lntoductiol
-ligdl Anthrcpol y {Oxford, Manin RobcnsorL 1979).
'William Twining uscd to makc his Varwict first ycar law students rcad a broadshcet
ncwsp:pcr for zniclcs about lew. Thc rcsult was rhat thcy oftcn pickcd aniclcs wirhcourtcascs
but misscd thc itcms on pcnsions rcform or thc difficukics oftransferring footbalicrs from one
ch.rb to rnothcr
' R Mlliam, (ryuory's: A Vocabulary ol Atluttc and Society (Loodon, Footan., 1975) g9.
' G Gorcq Hinalayan Villaee: An Accornt of tbe bpchas o/ Sitftiar (Londoo, Michacl
Joscph, I938).
.in chTherc arc many dcbatcs surrounding this issuc. Bradocy and C,ownic rcvicw many o{ thcm
I of rheir srudy of dispute rcsolution among Quakcrs. Scc A Bradncy and FCownie,
Liui,rg Wihout l,aw: An Ethuogaphy of Qnker Decision-Makig, Dispnie Arcidance and
Dispute Resolution lAldershor, Ashsate, 2000).
Socio-Legal EtbnograPhl, 37

. ln order to experience that world and portray ir, fieldwork was key. It is
rhrough freldwork rhar one begins ro en;r the mentality of the orhe;. The
primary nteans [or doing so ii language; knowing and understanding rhe
language.oI the group. Understanding-langu"g. ri."n. learning language,
appreciating how it is used both prosiicalli an_-d poetically. Botf, are ncces-
s:ry just as the right and left hemisphcrcs oi the biain arc esserrtial for com-
plete human beings. In other words, we necd to be scientific and artistic.
fhe artistic.or poetic aspect emerges when we attempr to play with the
nuanccs of language, and so often get it wrong. Santos was run out o[ a
{auela at gtnpoiat when he told an inhabitaniof one that he was doing
rcsearci on fauehs.!r Unfortunately, the appropriatc word for researcher in
Portugal translated into policc investigatiln in Brazil. Bccker also showed
how tyro marijuana smokers had to learn ro ger.high'-the term was not
self-explanatory or self-executing-since impostors ioul<t be identified by
cxpcrienced smokcrs.12 Group norms are demonstrated in interaction_
ours and theirs. Vithout interaction scicntific description of our world will
be lifeless and most probably incorrect.tl

Although the anthropology of law was a well-stocked field with studies of
groups- around the world, the sociology of law was relatively empry.r{
seemed oncc the state claimed the major role in law production, rejuiation
and administration, law revertcd ro its formal characterisiics in the
\0?eberian sense rather
than containing any impression of being socially con_
structed.rs It was difficult to encountei t.xis that would cxplain" how the .law
iobs'were being done in modern western sociery. Onc could see occasional

rr B dc Sorsa
Santos, 'scicncc and politics: Doing Rcscarch in Rio! Squattcr S.ltlcmcnts, in
R Luclham, (cd), I-ual and Sotial Enquiry: Cz* ir"li* il nliii,"ilirorlL. -S.""atr",t".

lnstrtur. ol Alrican Srudics; and Ncw york, N! Inrcmetional Ccntcr tor [lw in'Dcvclopmcnt,
l98l l.
HS B.ck.r, 'Becoming a Marijuana Uscr' ll953l 59 Americza of
23542. Joxmal Sociology

contrast to.rhis claim is found in thc work of Goffman who elthough

awcs an impression of complcrc discngagcmcnt. Scc, lor cxamplc, E Goffman, .dn
Loo.lrng-rhc M..rk Our: Somc.{spccs of Adap.ation To F.ilurc' (19 S2l
lS isychiatry: Jouraal
Iot ,h" Jtrdy.ol t,koetsonal Processes 451-43; and HS Bcckcq .Thc polkics of prcscntation:
uo.rthan and fotal lnstirutions' (2003126 Symbolic lnteraction 659_69,
r am maktng an arttltcial contrast bcrw-am thc zothropologist as student of prclitcratc
socicties and thc sociologist as rhc studcnt of thc modcm.
" 'An ordcr will bc callcd las if it is cxtcmally guarantccd by thc probability that physical
or psychological cocrcion will bc applicd by r sraloI pcoplc iri ordcl ," U.i.lii"*
alcn$ violariol'. M.webcj.9 Rorh and C Wittici, (cdsl, Eco"o",yini Socictyil,n
uutttne ol lntetprctit,c Soriolo3y (Bcrkcle6 CA" Univcrsity of California priss, l96g)
also Al Kronman, Max We6cr (Stanford, CA, Stanford Univcrsity press, lgg.])31-
3i. See
38 lohn llood

glimpses but nor much else. lirr example, I became interested in the role oI
the barristers'clerk, an agent rvho supplies work to barristers and collecrs
their fees.r'To my naive view of the world, it seemcd ridiculous that the
legal profession could base itself on Dickensian class divisions and that bar-
risteri' clerks were truly a relic of thc l gth century. Yet, as the study evolved,
t came to see that clerks were an inrportant part of the English legal sysrem'
providing a network through which different parts could coordinare. The
entire court listing system was balanced around the clerks' diary manipula-
tion: this way they could keep thc couns'case docket moving and maintain
a steady schedule of work for their barristers.
[.et me provide a brief account of the baristers' clcrk's world so that this
chaptcr remains intelligible. Essentially thc clerk is the middleman, or rnedi-
ator, between the diveise interests of the legal system, namely those of bar-
risters, solicitors, judges, list officers, and occasionally the client upon
whom the system depends. Although these groups are discrete, they are
interdepcndent. But their interdependence does not Prevent them from
pressing divergent demands that must somchow be resolved into a common
aim if the legai process is to function reasonably smoothly. How is this res-
olution effeited? By the clerk-and in so doing he assunres different roles
to satisfy the demands, bur keeping in mind his own interests. Broadly,
ther€ are three such roles: counsellor, negotiator, and 'fixer'. Perhaps the
most important is that of fixer, since the others are variants o( it. While per-
forming these roles the clerk carries out a number of tasks. The maitr ones
are negotiating his barristers'fees and collecting them, obtaining work for
his barristers, supervising their and the chambers' accounts' helping to
schedule cases and checking thc daily court lists for his barristers and the
solicitors.rT The barrister's clerk has a widc range oI duties delegated to
him.tE The ostensible rationale of his existetre is to relieve the barrister o[
the day+o-day routines of office administration so thar the latter can con-
centrate entirely on legal work. But the clerk does much of the 'dirty work'
of the Bar. He fulfils i role that would be difficult, both theoretically and
Pracdcally, for the Bar to do without. For example, he generates work for
barristers, permitting them the claim that they conform to their rule against
advertising: he can refuse to acc€pt work on a barrister's behalf by, say'
charging an exorbitant [ee, allowing barristers to say that they conform to
the supposedly inviolate cab-rank rule. Clerks have a lively history appear-
ing in novels by Surtees and Trollope, and Charles Lamb wrote about his
father who was a clerk.

f6J Flood, Batistets' Cletks: The Laut's Middlenten (Manchestcr, MUB 1983)'
<httpy'/www.lohntlood.com/Barrisrers-Clcrks-book.pdf >.
" tbid,p J.
'' rcscarch approximatcly 4olo of clerks in London r,'rere female, hence the
At thi time of thc
use of gcnder specific language,
Socio-Legol EthuograPbY 39

The sirrgle nrost conrenri.,rus point raised about harristers'clerks by rheir

.-rirics is rhe form of their remuneration. Clerks generally receive a clerk's
tee which is paid by way of a percentage commission. They take great pride
in rheir cu?nmissions, rhough it may, to somc, appear a dubious form of
payment within the Bar, which considers its own fees honoraria and is
unable to suc for rhem. Critics condemn thc clerk's fee for the reason rhar
clerks have a personal stake in extracring the largest possible sum from the
clicnt. Superficially the criticism sounds plausible, but ir ignores thc manner
in which clerks conduct their business. Overcharging would simply prevent
solicitors (rom returning to a particular set of chambers. The clerk! goal is
Io generate a constant supply of work. The fixing of fees rhus rcquires care-
ful deliberation. At one time rcceiving 107o of thc brief fees was a sign of
great esteem, 'a ten per cent man'.
I end this accounr with three vignertes that illuminare the rote and starus
oI clerks.
1976 a senior clerk described his tasks thusr .a
' -lnclerk does everything for his governor, even sewing on his fly-
buttons, because the typist couldnl do it, as there was no time
to take his trousers off'.
A common law clerk explained why the bar needed clerks, .l tell
- you, barristers need clerks, because they've got no common
sense, and rhatt what a clerk's got. These barristers go to uni-
versity and they get pumped full of law through one ear and
their common sense comes dripping out the other side' (said
replete with gestures: fingers in at one ear and the others wav-
ing away from rhe other).
A iunior clerk describing his initiation into the Temple remem-
- bered the rules laid down by his first senior regarding status and
hierarchy:'When I call someone by their first name, you call
them Mr So-and-so; when I call someone Mr So-and-so, you
call them Sir; when I call someone Sir, you dont speak to them'.
I had to make sense of a way of being that was largely alien to me.
Barristers' clerks were working class men with little or noeducation. I, as a
middle class, educated student was remote from them. tn many ways doing
ethnography is a way of developing empathy, which also means finiing oui
more about oneself in the proccss. I am trying to prcsent myself as someone
who will make sense oi their world to me and to them. B;ing a researcher
is a strangc occupation to others. Others have a good idea of what they do
because they do it. That does not mean they can articulate what they do
since in most likelihood they have not had time to reflecr on their actions.
The researcher plays the role of the external reflectoc But for the researcher
to take on that role there must be trust, which needs empathy. Without it
there will be no worthwhile results.
40 Jt,ht Fl,xt,l

Occasionally rhe criticism rvill arise rhat ethnography catr observe otrly
the surface o[ interactioo. lt is unable to determine the deep structurc that
produces 'universal' ideas o[ what makes the world. Certainly we cannot
iead minds and so we cannot knoto or verify internal srates, but that is nor
what inrerests us. If we are unable to produce an obiective accounr of real-
ity as something 'out there', then the alternative is to explore subiective
,ccounts diterminc how they constitute sociological understanding
through the"ndprocess of social interaction.t' Ethnography is provisional,
n.u.r-"bsolute. fhe very way that etlrnographers go about their tasks sug-
gests they are constantly learning and uncovering new- interPretations and
i."ningr. Ethnographers' findirigs are o( a different character to those of
social iurveys. V/. not conci.n.d about our degrecs of freedom, but
whether we have understood sociality better than we did before we under-
took our fieldwork.
I felt vindicated about my method of researching barristers'clerks after
I listened to a group of them talk about rheir careers at a Bar Conference in
the 1990s. Th-ey were contrasting the way barristers'clerks ran a set of
chambers with the more bureaucratic modes of administration adoPted by
practice managers. The laner could be good at instituting systems for
iecord keeping, billing and so forth, but they lacked the interpersonal skills
to deal with idvising barristers whett to move from one rype o[ work to
another, for example, criminal ro personal iniurS or when to apply to
become a Queen's Counsel (QC) with its consequential ef{ect on the types
of work a QC would be hired to do. The clerks' accounts of their work and
roles were rich and contextual. At the conclusion of the panel I went to
speak to rhem. As I introduced myself, they told me, 'l used your book to
pi.p"r. .y speech'. My iourney through the clerks'world and its results
ioriesponded with their own understanding. I had been able ro make the
barrisier's clerk's world intelligibie intcrnally as well as to the ourside
Ethnography presents a unique set of problems for the researcher, in parr
because it is a messy process. There are problems of entry developing trust
and empath6 t..o.Jing interaction, and making sense of ethnographic-
data. The fiist three ofihese are largely absent from many other typ€s of
Gaining access to groups exemplifies this point. In the three ethnograph-
ic studies I have engaged in, gaining access presented different problems
each time. Vith the barristers' clerks my main dif(iculty was that I didn't
know any nor did I know how to make contact with them. As a first-time
.ese".che., it hadn't occurred to me that I should consider this aspect of the

D This in part reties on Weber's approach to sociological method. M Vcber, 1958, abovc, n
15 at 4.
Sortrr-l-t'g,r/ t.tbwtgraPl4' 4 I

.e:ertrch rvhrtt selectrng rtry roprc. Official

sources *,ere of lirrlc hclp irrclud-
ng thc Ilarristers' Clerks Assocrarion, which genreelly ignored rny, rcquesrs
for help. I was concerned that no access *r, go,ng t() llcan no rcsearch. Ar
rhis.stage I was expecting to carry out inrirviews as rrry rnain researclr
nrerhod.. A stroke of good forturre changed my situation when a friend o[
mine, who worked in a neighbourhood L*..ntr., rold nre he knew a jun-
ior clerk and would arrange an introduction. Alrhough the subsequenr
meeting was successful and the clerk wanted me to sit in the clerks, room
ro experience the frenetic pace of the iob, circumstances almost conspired
ro block me. I had telephoned the senior clcrk to submit a firnr date for my
visit. He enquired whether I had read the New Statesman that day. I told
him I had not. He rhcn launched into a lengthy rant against an arricle enri-
tled'NCOs of the law'.20 Thcre was one paragraph, in particular, that had
greatly upser him.

Onr pcrson who fck rhc clcrks'preju<Jicc is a clerk hcrsclf: Mary Hickson, the
clcrk of the nrost unusual chamtrers in llrirain, those of Lord (iifford in Lambulr.
Shc works in ln officc rhar has a rroricc .Sue the Basrarrls!'by rlrc rloor and an
anti-anri-aborrion postcr in thc winr,low. As parr of hcr training for clerking, she
sprnr two months in'The Cloisrers'...,1 lcarncd how much I disliked thc Temple
arrd lrorv ruuch rlrcl,don't rvanr l wonlan ro bc a clcrk. Thc scnior clcrk therc just
rold me to go arval,and gct morrietl'. This prcjudice is cxcrciscd againsr women
as barrisrers, though, savs Hickson,.thev think thcv'rc okav [or somc things likc
matrimonial work'.rt

In addirion rhe arricle referred to the criticism that the barrister's clerk's
commission tended ro inflare the fees charged to clients. The senior clerk
vehemently denied rhat clerks were biased against women; he even said that
when ; new, set of chamtrers r*.as being established he had recommended a
woman as clerk. The description of the clerks' room, including its posrers,
represented to him a gross violation of good taste and proper conduct. .l
certainly wouldnl have posters and a sign saying -Sue the bastards!. in my
clerks' room'. He also felt that clerks were being unlustifiably attacked over
the question of counselt fees and put forward the defence that certain occa-
sions and circumstances demanded he reduce or even waive somc fees.
Sometimes, he said, the fault lay with solicitors, who offered unnecessarily
high fees to counsel: for example, one solicitor suggested a f,So fee for a
matrimonial matier thar, at besr was worth only {25.
The upshot was, according to him, that no barrister's clerk would allow
me, or any other researcher, to enter their chambers-a total, eternal ban. I

l" Thc article was written at the time that the Benson
Commission was inrcstigating Lgal
services. Firral Rcport of tbe Royal Conntission on Legal SerL,ices. Cmnd ZeeI
HMSO, 1979).
rr 8!gler, 'NCOS
J of rhe Law', Ncu Saresaran. J March 1976, p 2Bl-87.
47 joht Flood

felr faint with shock, but (or rhe following t\'\'enty minutes t virtually
.J *ittl hi- to change his mrnd. I poinied our the ad'antages' that I in
*.riJ U. ibl. ,o pri"r.n, a fair ani obiective picture of clerking' which
*""iJ .*r-f y ,uif.r.th.ough my not having cxpcrienced the urgency and
f;;; ;i ;il ll.rk.' ioorn. as a final-argumenr' .l o(fered him the
opfo.,onity t.' ,."d and commenr on my writing, bur without assigning any
cdito.i"l control to him. To my relief ihe ,rg,-..ntt had some effect'
Lig"n'a i.,t.r, from his position and qucstiln me about thc lengrh of my
;,"y. i ;;;;J that two or three days would be suffic.ie nt Again he raised
obiections but, greatly to *y.urprir., now considered it:horr and
thc Old
tr;...d t .*i"Ina ,n. ui.itio *..[, when he could take mc to
Baiiey and the [:w Courts."Paradoxically my situalion had.actually
improved as a result of this apparent catastrophc' It was as though he
,h. *,;li. i"ii.." Evcntuallv, I re mained in various clerks'
rooms for'several months having hccotne an accidcntal cthnographer'
ln my second study the proi.s, of gaining entry was- supposcd to be
much smoothcr. My purposi was to doln eth-nogt'phy of a large law
it ciri"ig.;; on ,tiit'o.i".ion I was fonunate to have as one of my disser-
tation cJmrnittee members Jack Heinz, a law professor at Northwestern
U;tr;r;t inJ ,tr.n .*..u,i"u. director of the American Bar Foundation'
fr{"ry city's lawyers had been taught by him, so he. was.lnowledge-
"f',ft. (irm' one of
,uiy'pr"..a ,o ,'durn.. my chances o( g;inin! entry.to a. law
the'kly obstacles was the Problem of ,n'y p..itntt violating anorncy'client
privilege. The first law firm I approached was supportive of my aims until
Lne of" their clients was found'shot dead, allegedly hy the Mafia' in
investigation by
Cil."go p"iLi"g lor. As this would result in an iwkward
the arithorities,-the firm decided they should decline my offer to observe
them. The ,r.*i firm that was approached agreed to take me as observer'
again the way smoothed by my irper"isor, provided they could hire me
a'temporary Lasis to ou...o*. th; difficulti with attorneY-client privilege'
My thi.i study of the Financial Ombudiman Service (FOS) was anoth-
., r..id.nt"l ethnography. Vhile at a reception for someone leaving theI
Law Sociery I m.t f,er'piedecessor. ln the usual small talk of receptions
asked him what he was now doing. He replied hc was chief ombudsman
at the new FOS.'What's that?', I asked. He told me about the di(ferent
ombudsmen organisations-cg, banking, investment, insurance-that
were being intefrated,o fo.-'l unifi.a"iin"n.i"t ombudsman service'2'
After we iartedl.ather in the style of esprit d'escalier, it occurred to me

2r I Flood-'-Ihc Middlcmeo o[ the Law: An Ethnographic Inquiry into the English trgal
p."f1..1""' ifSSff e- eric4n Bal Founddtion Reseatch loutal J774OS'
''i'iliil1:i;;l;;;;iI"*, e" L,r'.oe*phv o{ a corporate Law Firm" (PhD disscnation'
Dep'anmcnt of Sociology, Northwestcm Univ.rsily' 1987)'
rr Sec .http//www.f inincial-ombudsmao,org.uk'.
Socio-Legal Ethno2raphy 43

rhat there exisred a research possibility in rhis new organization. My sub_

sequent conversarions with the chief ombudsman indicated he was of a
nrind to encourage research on his fledgling service. He patienrly spenr two
hours telling me about the organisation-, bit revealed that he was reluctant
to h1e give up large amounts of time ro be interviewed by
lri; _elnlgyces
me. Could I do the research in a less invasive way? I suggested he let me
hang around him and his colleagues and observe rLem. Hi warmed to this
approach and I bcgan my ethnoBraphic study of the FOS.
In ethnography one has to deal with tife in real time, with interaction as
it occurs. It is not possible to wait and go back and ask, .How was it for
youi' The point of ethnography is not to recover memory as in oral histo-
ry, except as somerhing auxiliary to acrion obseryed. Although I rcfcr to
observation as though it were some passivc activity like watchlng a film, it
never is so remote from what is happening. Ethnography is often rcfcrred
to as'parricipanr-obscrvation', which I would argu. is mo.e common than
mere 'observation'. It is difficult to be disengageJ from interaction and rhe
researcher is frequently drawn in by stealth.rl For some researchers this
kind.of involvement is disturbing because it may diminish their neutraliry
a.nd impartialiry. They can be seen as taking sijes by being implicatecl in
that which.they are observing, But this is not always the.a're. Dr.ing my
time with thc barristers' clerks I would happily answer the phone and checl
diaries, especrally if the clerks' room was jhorthanded. Thii mundane activ-
ity helped me understand how the clerks'room actually frrnctioned day to
day. For the clerks the busiest rime of day was around five to six o'clock in
the evening when the solicitors called in to ger barristers for the next day. lt
was like rush hour-phones ringing continuously, clerks calling across the
room to each other for information. No one could stop untillhe phones
stopped ringing.
Being active in the field as participant can mean rhat orhers identify one
as belonging ro a particular group. Most barristers who encountered
me in
rhe clerks' room saw me as another cl€rk, which put me below their
My being so categorised meanr thar my situation was perceived as harm-
less and enabled me to observe things ihat I might noi have been able
see if my position had bcen different. For exariple, part of my
interest was ho*'clcrks and barrisrers interacted with cach other given that
they came from different backgrounds, classes, differed exremjy in edu_
cational level, yet endured a considerable degree of interdeftndence.
Quintin Hogg, a former lord chancellor, had oice said:.A solicitor is a

." Convcrsel* in their study of divorcc lawycrs and clicnts, Sarat and Felstincr cbscrvcd
lhrough rhc mcdium ol thc tapc rccordcr in thc lawycrs'officcs whilc thcy wcrc abscnt which
kept them trrmty drsranccd lrom rhc action. See A Serai and WLF Felstinet.
Diuorce l_autyers
and Their Clients: lowet and Meaning tu rhe Le6al process (New yo*, Ni'OUlr,
iStSf g_lO.
44 Johr Fl,ncl

man of business, a l,arristcr rn arrist and a scholar'.r" 'l-he bar hrd sur-
rounded itself with rraditions, ofren newly-minred, rhar seerrred to insulate
it from the pressing concerrs o[ cornmercial li[e.]7 Since lrot every birrister
was accompanied'by a privare income, rhe nced ro generare tnoney was ever
Present. The difficulty for the bar was how ro overconre rhe impurity of
being directly concerrred with negoriating fees and collecting them.r3 The
solution to the dilemma was rhe clerk: he would bring in the money and thc
work. The world of work surrounds itself with ideas of cleanliness and dirt
and differenr occupations are esreemed according to rheir degree o[ moral
purity. Everett Hughes coined rhe rerm, 'good people and dirry work',
which is where rhe clerks are situated.re
Even if there is no actual identificarion with a group, there may be
ascribed identification in that others are convinced you are a part, In the
Chicago law firm most clients saw m€ as anorher attorney with his yellow
legal pad. This is often a useful arrribution. Whar others think has an
impact on the group and they begin ro rhink the researcher is one of thenr.
Admittedly these multiple attributions and ascriptions can [T come confus-
ing, bur the task of rhe ethnographer is to accept thc challenge of multiple
roles and identiries. There were rimes when I would find the confusion over-
whelming. The main one was when thc clerks went to the pub. Clerks spent
a lot of time in pubs because thar was rhe best meeting place to exchange
news and gossip. Gossip is an essential means o[ comnrunication since ir
enables people to trade information especially in situations where little is
written down. In addition to talking, the clerks drank. I was not used to
drinking heavily but I had to parricipare otherwise any prerence of heing in
with the clerks would collapse, despite the consequences of my own physi-
cal collapse. In a way, I was no different to Becker's marijuana smoker
learning about being high.lo I had to learn ro drink and behave in ways that
were unfamiliar to me.

- l:-S Aylen, l.)nder rhc Wigs: The Mtnois of a Legat Kiry-Makcr lLondon, Eyre Methucn,
1978) 160.
This is clcarly a tradition of mythic proponion. Abcl has conclusively demonstratcd that
lor many ycars a larSc proponion of thc bar has rclied on thc statc via legal aid to suppon it.
See RL Abcl, Ile Le6al Pro{cssion iu Eugland ond Walcs lOxlord, Blackwell, 1988); and RL
A*1, English l-avyus betucen Markct axd Statc:'fhc Politics ol Professionalisn lOx{lord,
9UP, 2003). Hobsbawm asturely notcd that, 'lnventing traditions .-. is csscntially a precss of
fotmaliration and ritualization, characterizcd by re[erence to the past, if only by imposrng rep.
erition'. E Hobsbawm and T Rangcr, leds), The lncntion of Tradition (Camhridgc, CUB
} M Douglas, Putity attA Dan4ct: An Atralysis of the Co,rccpts ol Pollution ancl Taboo
(Harmondswonh, Penguin, I 970).
" EC Hughes, Tba Sociological E1e: Selectcd Papets ott Work. Self, and the Sudy of Society
(Chicago, Aldine Athe on, t97ll 87-97, 13847.
"' Becker, 195J, see abovc, n l.Z.
gnsjp-l,cgoi Etln,ryrapl:1' 45

Anv rcsearch setring is porenrially daunting for the reserrcher. Ilow is

one going to be received? Are the people kiendly? Will I make a fool o[
myself? When I first met rhe lawyers in the Chicago law firm I was about
to study, someone shouted, 'Here's the company spy!' But all of this g0cs to
rhe task of developing trust. The scale of the setting has a big effect. With
clerks I dealt only with a few at a time and it was easy to be vouched for a:
I moved around different clerks'rooms. My last two stints of fieldwork
were withirr large organisations where there were a variety of coalitions,
alliances, groups, and networks to contend with. Hcre it is easier for one to
be identified with particular groups and their interests. I was most aware of
being categorised in this way when I researched the Financial Omhudsman
Servicc. At the FOS I started my fieldwork with the managcmcnt who were
rcconstructing eight different ombudsman services into an integrated
whole. Some o[ these eight had been privately run, others were state insri-
rutions. The cultural divergences were enormous ai times even though
everyone I €ncounrered seemed eager to bring about this integration. I felt
I had to stay within rhe group that I was otrserving as rhey were doing thc
core work of dcsigning the inregration. For the remainder of the organisa-
tion there were thousands of financial services cases to lre dealt with, some
under the separate ombudsman rules and the newer ones under the integrat-
ed service rules. With a caseload of 45,000 disputes spread among approx-
imately 400 employees, little rime was left for the organisation itself.
Noncrheless, for the managemcnt derermining how the FOS would evolve
was crucial. The governing legislation had produced a hybrid form of con-
trol where the FOS was fundamentally autonomous but its budget had to
be approved by the Financial Services Authoriry (FSA).rr Approving the
budget became the entry point for the FSA to attempt ro micro-manage rhe
FOS. For me, the ethnographer, the meetings bewcen the FOS and the FSA
werc highiy charged <iramatic scenes u,herc the rwo sides struggled and bit-
terly contested control. In this conrexr I became very much identified as a
member of the FOS management by bbth sides, which, at rimes like these,
was inescapable for me. One cannor say, 'this is nothing to do with me,' for
one is explicitly implicated.


The data collected in fieldwork are multifaceted. They cover conversa-
tions, observations, impressions, and so forth. It is at this point that
ethnography gets epistemological qualms. Is it looking for similarities or
differences, convergence or divergence? The Chicago School would

rrScc Financial Markets and Services Act 2000, ss 225-34 <hnp://www.hmso.gov.uk/

46 lohn Flood
it is
emphasise the forrrrer,rr while Burawoy exPresses the latter'rr Perhaps
onc engages ro
at ;his staBe that theory frilfils a role for ethnography. Once
of the ethno-
analysis, Jne cannot h;lp but theortse. Bur wh-at is indicative
this I
g.ap'hic approa.h is the link to injuctivism and grounded theory' By
ir."n ,hri i, is not always po*ibl. ,o set ,p prilr theoretical .frameworks
in ethnography no ari,., hovr precise on. r,ie' to-. be' -becausc the
researcher does not always tno* *i", ,t. outcomes will be' Ethnography
is constant srrrprise. [t giu.. ,ir. ,o'ir;i'ii.*.,i."r
insights as it evolvcs']'
This rolling style of the-orising f".ifi r,..,f,. creation o'an 'organisational
.pistemolo"gy' ih"t assists ideis to build on each other as the res€arch
Social scientists make unfair generalisations about ethnography'
quently that because it fo.rr.. or,'r*"it-..ale activities, it must.ignore
grand thern€s as
world-at-largc. There is no reason, for example, why such
globalisation" cannot be brorght rnto the'realm of ethnography' The
Financial Ombudsman Service i, no,, integral Part of the apparatus that
"n has led to-governments
Eoverns the deliverv of financial services. lts success
in Asia and Latin Arnerica .onrid.ring adopting the model for their soci-
eties. The ombuds-"n h", g.n..rily bi'.o.., p6werful means of
disputes in many areas of tii.'fr". financial services to funcrals'
Ethnography can help in,..p.., ,t.r. movements by understanding
must go through in
processes and steps that societies and organisations
Lrder to produce workable and reasonablt solutions to problems encoun-
tered by the citizenry.
Ma(ing s.nse oi ethnography should be simple' The.books,of Studs
Terkel telfing of life ln Chi.lgo tlirorgh the wordsihe people.he talked
porv.rd and redolent o"f the st.ig,gl.s and indignities that.life throws
;; *;;k,il;i,,, rt. ,,o.i.t .Eak to us anJ thev are also the kind

MJ Dcegan, 'Thc Chic.go School of Ethnography' in P Atkinson' et a[' lcdsl'

of Ethnogruphy lLondon. Sagc. 2001l.
Anterican Sociological Rer'rcu, 645-79.
; t;;;.;-h;i';;;.i rt cvcry
ixi,.jq'"nir .t"i., ,t'at, 'To fail to cxcrcis( thcorctical cortrolmcthod
t*ayo.s *ith cvcry orhcr of
stcp in thc dcsign and i.pt...n,",ion oirn Hn"g.";i,i;
so,:ial obscrvation and ,o op.,i,r'. i ii"iutlot "i^Pt" f
on now
ordinarv norions issucd "n"tyri.-;.
out ofcommon sensc fill in thc gap and steer crucral decrsrons
;;:il:il;'#"X."# ;.;*'1il;;i;; ;i t'"na .I'.' I wacquent,'Rcvi'w svmposium:
ot u'u"i' rthnographv' {2002) r07
;,i:jij'l.;;lfi ff'::; i'li.i'ii'iiillrr",r;'"-;a ;ti-pitr,ii'
in DJ Frindcrs and.GE.M,rs. (cds)' rEeory a'l
c",';;;;';'A";i;;;i;"'i*"","i, il,lpinii,' i'i 'r'" fictd {New York' NY' rcachcrs
Colleec Press, 1993).
,ihiii,c' p""pl" Talk about whar Thev .Do All Dav and^Ho,w Thcv Feel
ao.ri-it-t iiiy' o" rN"* i"i[, Ni' p"'itt''on Boo(s' 1984) set also
Socio'l.c1Yl litlnograPhl' 47

()l stories rhat people listen ro and act on. According ro sorne.rral histori,
.lns and soci:rl scientisrs rhese stories are nor generalisat)lc, thel,are arl boc,
personal, occasional. They do nor consrirute; basis on which to theorise ()r
nr:rke policy. Just as I am a legal pluralist, I am a methodological pluralisr.
I believe the banle lines between qualirative and quanritaiive approaches
are illusory and unnecessary yet they pcrsist. If srrial science had the con-
fiderrce not to aatempt to replicate the natural sciences, its impact on the
u,orld would potentially be greater. Howevcr, the lines are drawn and the
main critigue from the'quantoids'is thar qualitative research concentratcs
too much on the parricular at the expense of the general----onty largc Ns can
rell the truth.
Part of rhe problem is a misunderstanding rhar some have about ethnog-
raphy. Ethnography is about interpretation nor causal analysis. And
ethnography also includes history; time is an essenrial element. If u,e want
ro understand tlre complexity of lawycr-client or docrcrr-parient relation-
ships, we need to know what happens in those inreractions, we need ro
obscrve them as they unfold and play out. A survey rhar recollects dinr
memories u'ill not tell us much. l{ we wanr to know h()w organisations
attemp( to create a culrure and establish rheir niche, we need narrarive
because these things are conrested, anrbiguous and inch<>are.l7 fhc case of
the FOS is interesting. Here is an organisarion that camc together irom
many and over tinre came ro play a central nrle in the financial services
industry. k had to coordinare irs strategies ro accommodare the needs of the
industry, the regulators and government, and yet establish its own identity
and role. This was not something that could be created on a template since
it required careful negotiation in order to establish its bona fides with these
groups. The backgrounds of the managers-they came from a mix of legal
and regulatory careers-assisted in these processes since they
some oI the values recognisable by others in the nerwork. By understanding
the processes that form organisational culture and idenriry, we can do
things like formulare good practice elsewhere, but we need to be able to
identify the constiruent parrs not merely the end result. As Van Maanen
nicely encapsulates itr 'Narrarive is not an ornamental or decorative feature
designed ro make ethnography more palatable or audience-friendly, but a
cognitive instrument in its own right'.rJ
.by Perhaps one of the most telling points about ethnography is its adoption
corporate enterprises as a means of understanding theii businessei and
consumers' responses to them. The technology industry has led the way

, J Van Maanen, 'Aftcrword: Nativcs 'R" Us: Some Nores on the Ethnography
Organisarions' in DN Cellner and E Hitsch, {eds), Irside Oryarisations: entl,rop6togiis at
W.or& (Oxford. Berg, 2001).
'^ Van Maanen, rbil, p 256.
48 Johu Flood

through its realisation rhat the views of softu,are engineers and consurners
do not necessarily coincide and that the social impiications o[ compuring
are increasingly important.r' Moreover, .anthropologisrs are now regarded
as a neccssity at such firms'..o
To bring this essay to a close, I would reiterate a telling point made by
Everett Hughes many years ago. It is in connection with the statcd problem
that others sometimes have with crhnography, thar we cannot lerrn any-
thing beyond the details of the story tolJ. Augh.. *ro,.,
I am suspicious of any method said to be rhc one and only. But among thc meth-
ods I ,vould recomrncnd is the intensivc, pcnctrating look with an imagination as
lively and as sociological as ir can be made. One oimy basic assumptions is that
tt onc quitc clcarly sccs somcthing happcn onc-c, it is almost ccrtain to havc hap-
pencd again and again. Thc burdcn of proof is on rhose who claim a rhing once
scen is an cxccprion; if rhcy look hard, thcy may fiod it cverywhcrc, although
wrth somc intcresting diffcrenccs in cach casc..,

.r'For cxamplc, s..c L Suchman, Phns an1 Siuaul Actions: The problem
Machine. Communicttion (Cembridge, CUB f 987).
Ol Hunan-
"' 'Off.Vith the Pith Helmets', Ecorrorrisl Te chnology euattetly,l.t March 2004, p 6.
" Hughes, 1971, above. n 29 at ix.

Systems Theory and Qualitatiue

Socio-Legal Research

ts wtDELY taken for granted that systems theory, especially in the form
of the extensively elaborate work o[ Niklas Luhmann, is just another
Iexample oI sociological grand rheory. The underlying assumprion is that
the approach is useless for social research. This understanding may be
based on a myrh. In rhis case, it was a way for sociologl mainly in thc 0SA,
to deal with the trauma afflicted on it nearly seventy years ago by Talcott
Parsons. His attempr ar tying Weberian grand theory to pragmatist social
science research culminated in what was then called systcms theory.t It split
sociologists deeply over the way in which to study and understand socLty
and in relation to the question as to the best methodology to fit a socially
constructed and deeply troubling world. Since then sociology has becomi
more methods-pluralist or, in the version of .postmodernist; dcliberations,
even methods-indifferent. Yet, the sociotogical trauma of Talcott parsont
rheory construction has persisted as a label for systems rheory in the
mythopoetical way that labels always do.
The theory of Niklas Luhmann has dcliberately, and maybe provocative-
l; embraced not only the label but also the p.ogi"*.. oi"yrtems theory..

ITParsons, I/re Sorial Sysranr (Clcncoc, ll- Frcc prcss, t9J7).

_ '
As a mancr of facr, Luhmann rumcd sociologist (from administrativc lawycr) by joining
Talcon Parsons ar Harvard for studying formal irganisation fo. y*,'i"'a .ir-i.i
homc as thc only maior protagonist of syitcms thcor! in Gcrmany at the "
timc fl96g) bur a sysl
rcms thcory cntircly on his o*tr tcrms. Sc< lor morc biographical dcuil
of Luhmann\ woik,
cspccially in rclarion to socioJcgal rcscarch, KA Zicgcn-, .i(echsthcoric. Rcflcxionsthcoricn
dcs Rcchtssyatcms und dic Eigcnwcnproduktion dcs Rcchs' (tagal rhcory,
rcflcxivc thcorics
ol.thc.lcgal.sysrem and thc producrion of rhc intrinsical valuc of lawl in H dc Bcrg and
khrlridt,-(eds), R..cp.io,t utrd Refiektion, Ztr Resonarz der Systemtheorie Niklas LuhmaniJ
rlt6c alb der.Sozioloste (Frankfurt, Suhrkamp, 2000| 93-133; end KA Ziescrt, .Thc Thick
ues(npnon ol l-aw: An Inrroducion to Niklas Luhmann! Theory of Opcrarivcly Closcd
.i,:rr, R and-M Travers, (eds), An tntrcduction to'ta- iiiiicit ru"o,y
Oxtord. i,l _Banaka.r
Ha.r Publishing, 2002) 55-75.
50 K/arrs A Zicgert

However, Luhntatttt has cxplicirll'reiected rhe theorerical tcttets ol Parsotrs'

approachr and, above all, fundarucntally reworked Parsons' rnerhodology'
In doing so, he has, on the one ltand, disrinctly diverged from the subsrance
of a.grl..nts which systems rheory today ,loes no longer suPPo(t. On tlre
otheahand, he has based radically new arguments on an uncompromising
empirical conceptualisation of societl'. Therefore, it will be tht central argu'
ment of the following observations that a thorough evaluation o[ the
process of Luhmannt theory building over thirty years can show that it was
above all the methodological lurn-ancl nor a theore.ical ttrrn-which put
Luhmann's systems theory on the tracks of a radically new approach to
sociological t'heory. Arguably, then, it is also this methodological aspect thar
makes iystems theory eminently relevant for socio-legal research.
I have argued elsewhere that Luhmann's proiect of a 'functional analysis
of society' was driven from the outset by rhe idea of sociological enlighten-
ment.' For Luhmann that meant that only sociology could ofiet a scienific
methodology for working our a general theory of social organisation
inctuding law. This is reminiscent of particularly Eugen Ehrlich, Max
Weber, and Theodor Gciger among rnany trrore in the past, and in the pres-
ent, w'ho were or are lawyers in search of a scientific foundation for unre-
duced knor+,tedge about human practice, and in particular law. They all
made valuable methodological contributions and ir should be rcmembered
that particularly the three mentioned atro"e conducted pionecring empirical
studies o[ law and society in spite o[ being sociological 'loncrs' without
much connection to sociological schools or specific research traditions.
It can be argued that the similarly undeterred and lonely methodological
drive of Luhmann's sociological enlightenment builds on the conceptual
work of these predecessors and finally succeeds in stringing together radi-
cally abstracted concepts which can be empirically tested to form a cohesive
theoretical matrix for functional analysis. The result is clearly not empirical
social science research in the conventional nreaning of variables research-
which Luhmann rejected as meaningless.s Rather it puts his approach clos-
er to 'thick' (qualitative) empirical conceptualisations of societl', such as

r This is not thc placc for a morc thorough cxposition of thc cvident, deeply cultural differ'
cncc in thc historici of ideas on which Parsons and Luhmano draw rcspecivcly. Prrsons' his_
tory of idcas is thc spccific adaptation of thc sociological carcgories of Max Wctrcr to thc US
tradition of pragmaiism. Luhmann draws on a much longcr histoty of idcalist philosophy
(Hcgcl), philosophical anthropology (Gchlcn, Plcssncr) and phcnomenology (cspecially
Husscrl)which a[ have bccn bypasscd by US American sociology morc or less c'omplctcly. This
obscrvatioo is also important for thc comparison with groundcd thcory in this chaptcr.
' Zicgcrt, 2002, scc abovc, n 2.
' Scc-only N Luhmann, 1993, Das Rccht det G*ellschaft lFrar.kfun, Suhrkamp, 1993); N
Luhmann, KA Ziegcrt,l.rl, Societ!'s Law,lsydncy, Faculty of bw Notcs' 2000); N Luhmann,
F Kastocr, e, dl, (cds), KA Zicgert, {tr), 7,ao as a Social Systca, (Oxford' OUn 2004) np l8'
31,41,45 (n 151,46ln171,71 ln 1461,124, 127,149 and in th€ contcxt below.
Systems'fheorl, atd Qualitotit,c Rcscarcb 5|

grounded rheory. AnC it is definitely

not abstracr theory for rheory,s sake,
strch. as sociological grand theory
oi wharerer this label designates.
This explores the hypothesised methodological affinity between
qualttatrve social scicnce research and the way in which
Luhmann discof-
ers- socrety wrth sysrems theory. I will
argue in the following section thar
Lrrnmann s conceprs are, contrary ro widely held opinion,
an excellent map_
ping device.in tlre methodological framework of qr"litatiu.
rescarch. This will lead to a
iuxtaposition o[ sysrems t'hcory and grounded
rheory ai rn.many ways comparable approaches when qualitativc
social sci-
ence research rs concerned. The evaluation of the two
approaches will, then,
provide criteria that allow us to argue thaa systems theory is
the better ber
as far as research technology is loncernei and that Luhmann,s
descnprron ol law makes systems theory particularly fit
socio-legal rescarch
requiremcnrc. The functional analysis ofihe operation
of the ruje of law in
different social setrings can, final'iy, providc ,.h.."ii.
.*".rt. for ,t.
potential of sysrems rheory when ir is iiscovery" rhat researchers
r'equire and
nor iusr confirmation of what they already know.

Luhmann, though an administrative lawyer by professional
was.not primarily interested in law and, in fact, quite
reluctanr to get
involved. in sociology of law. Vhat he was in,.r.r,.j
ln, prot ivl. , ..rutt
o[ studying law under the harsh conditions i, G...r;; i;;;iirt.ty
the end_ of rVwtl, was to discover how
social ;;;'r;;;;;l; if,h..on_
trary, chaos, was much more plausible.T But".d..
what h. .l^. ,p *l,h ,...,
to be, at least at lirsr sight, sociology with the conceptual tooli of jurispru_
dence' By that I mean an extreme, even obsessive, care
for the diiferentia-
tion of terms, definitions and concepts, their comprehensir.
and their conceptualiy righr fit with *.ir-alrin.l] .p..iri.
1l-1 ',.9*",1."
socral domains. This then is the method of this ,iurisprudenrial
the careful observation of what can be tornd in'the'-"oo.J
Discovcry rathcr than rhc mcrc confirmarory tcsting of hypothcscs,
is of coursc onc o[ the
ovcrriding conccrns of qualitativc and ;ntcrprctivc- socll
*i,.. .*1.*, *.,'fo, .*r.pl.,
Kirk and Millct.cspccial[y whcn thcy statc.Mo.t ofth. t..hnoiogy
ruaovc rescarch in both thc social and n:rural
oi...ilrnril.r, ,".-c*r.
scicn... i.."i.J ii*Ilry,. S.. y
Kirk and ML Mittcr. R.tidbitihr and untitity i"
1985) lJ. a,.ilt"ti,; "?p;;;;,i"g
iiiiri, ce, s"r.,
Scc intcrvicw with Picrrc Guibcntif in p Guibcntif, piene Cttbe,tif
.htervicw i, Bielefeld 1991,
first pubtishcd (inFrcnch) in Aj 1."",a-"ij
obscruatew du Drol (paris. Librairie a;niratc dc dior,
i C,is.l,)iri,'iJirl,'ifii! ,,u*",,
t993, et_187-2291in the^ccrman origi-nal
; i;;;;;:#, t ;;it'et so.i6r6,
*"i", p-'Cri]*r,ii ir.riiij'. r-rt.rnn
Luhmann' Bicrererd, TJanuarv ,ee,'in (2000)
57 Klaus A Ziagert

construction of unrversalll' applicable concePts which are consisrent with

each other throughout and which, more imporrantly, follow {rom each
other in whatevei direction one is guidcd by them. Thus systems theory is
thc endless'grid' of everything that constitutes society. Luhmann rvas aware
of the enorriity of the task oi finding a formulaic expression for that grid'
However, he iid not shy away from making conplexity his business and
svstems theory reflect that complexiry. The result is a conceptual grid that
can be read semantically in any direction-and in the logical form of a text
lrom the beginning to the end or from the last chapter to the firsl' In this
sense, metaphors for this enterPrise, such as'maP" mu3t mislead, as they do
not really reflect the'sphericali construction of the conceptual 'grid' which
in fact connects all its nodes with each other and yet returns every depar-
ture eventually to the point from where it started.
The obiective of thi enterprise is thus not so much 'theory building' as
producing 'good science'. Luhmann's overriding concern is clearly focusscd
on the good fit b€tween obscrved phenomcna and the concepts that capture
them but he never overlocks that only theory, not the concePts themselves,
provides the basis for a reality check.t We can, therefore, conclude that
Luhmarrn's methodology for a scientific universal explanation of society was
effectively driven by thc iurisprudential experience o( the practical impor'
tance of tighrly fitting concepts that can be tested only in the theoretical
framework in which they are developed and thus 'ground' systems theory'
As a result, the theory of operatively closed systems is, in the methodologi-
cal sense, a thick (concept-rich) universal description of society.
Seen in this methodological PersPective! one can understand why
Luhmann had the courage.-Luhmann used to say more directly: 'pig-head-
edness' (Bockigkeit)-to build his theoretical concePts from the ground up
independently of any schoiastic conventionse and to pursuc this methodolog-
ical strategy with an astonishing sense of direction.ro The most important

' Luhmann 1993- D 45- scc above. n 5.

' Scc thc collection of carly sociological cssays (1962-1968) in N Luhmann, Soziologiscle
Aulkliiruns lOoladcn. Wcsrdcurscher Vcrlag, I 970).
t'i Scc th-c sciics of books on functional-systcms staning wkh thc conccprual map in N
Luhmann, Sozialc Systeme. Gandriss einer allgcmcinca TEcoza (Frankfun, SuhrkamP,
1984), a;d in thc dnglish cdition: N Luhmann, Social Systems (Stanford, CA, Stanford
Univcrsity Prcss, 19951; N Luhmann, Die Vilschaft det Gesellschaft (Socictyt cconomy)
(Frankfun, Suhrkamp, !988); N Luhmann, Dic wisse*chaft der Gcselkchalr lS*ictv\ sri'
cncc) (Frankfun aM, Suhrkamp, 1990); N Lohaann, Das Rccht der Gesellschalt lFrankfun
aM, Suhrkamp, 1993) (scc n 9); Luhmann, Die Kunst det Geselkchaft (Socicty! finc art)
(Frankfun aM, Suhrkamp, 1995L N Luhmrnq Die Religion det Gesallsclalr {posthumously-,
Socicty's rcliqion) (Frankfun, SLrhrkamp, 2000)i N Luhmann, Die Politik det Gesellschaft
(posthtrmouih- Socicwt oolhics) {Frankiurt, Suhrkamp, 2000)l and ending with thc grandiose
account o{ .l.i.ty in ttt. scning of global society in N Luhmann, Die Geselkchaft der
Gesellschaft lFranktur, Suhrkamp, 1997).
S1'stems Thcory atul Quiilitatiue Rcsesrh 53

clerncnrs o[ this srrategy for ohririning and grounding scienrific knos,ledge

are rhe followingrr:

l. an observation of a material eoltinuunt which happens bur

remains unfathomable as to its full complexity; it can be called
'states of affairs' (Sachverhalte) or .world';
2. the observarion that statesofaffairs (world) are neitherobvious
nor self-explanatory (,natural');
3. the observation of observersr a state o[ affairs can he scienti[i-
cally ohserved and explained; this may result in differenr poinrs
of views of different observers;
4. the observation of ttle eonsrructrbz of the observed: phenome-
na are not'made up'by the observers, howevcr diffcrenr their
views are. Observers reach intersubiectively a shared under-
standing of what things 'mean'-nor whar they are-and are
intersubiectively held to that accepted meaninB;
5. the observation that the consrrucrion of scienrific meaning
(knou,ledge) has ro proceed empirically and by solidly ground-
ing theoretical concepts on accurate observations in order t<r
make them intersubiectiv€ly acceptable. Theory whrch is a pri
cri and prcdictive (prognostic) is useless (impractical) for expla-
5. the ohservation that a comparariuc apprcach provides the most
accurate observations and the most solid empirical grounding
for concepts;
7. the comparatiue obseruation that rhe rros, distinctiua featurcs
of phenomena (states o[ affairs]-when compared-are rheir
functions and not their forms.
8. the comparative observation that the crucial aspect of functions
is not the fact that they exist or whether or nor they are fulfilled,
but thar functions become possi&/e by evolution;
9. the comparative observation that possibilities are contingenr.
This means that if somerhing (that existVhappens) is possible, it
is also possible differently, ie, there are functional equivalents
within different forms increasing complexity. Contingency and
complexity defeat causal explanations (for instance as in quan-
tirative research based on variable analysis);
10. the observation thar functional equivalents and how they hap-
pcn are useful reference points for structuring comparisons and
for condensing observations into concepts and concepts into

i' See in more detail Ziegert,2002, see above, n 2, p 57-.58.'

54 Khus A Ziegcrt

I l. the gocd science resr: thc observ:rtion that good theory must trc
able to answer rhe quesrion as to how rhings (state o[ affairs/
world) can becorne possible; rhis means, thar good theory musr
b.-able to answer the question as to how something can create
its (own) boundaries in relation to the enYironment in which it
12. the observation that s/srcrns are phenomena which can be
observed and conceptualised as ones which ixcome possible hy
creating their boundaries by their own operations. ln this way,
social systems are the 'research fields' or 'sites' of empirical
research which is guided by systems theory.
13, lhe strutegic deeision that the theory of social systems is good
sciencc which passes the good science test.rJ ln fact it is, as far
as can be seen, the only sociological th€ory that does that.


The methodological points which we have selected above from the profuse
work of Niklas Luhmann are often hiddcn under the overwhelming intrica-
cies of conceptual detail. However, this is the very essence of a thick descrip-
tion and it is nevertheless clear ar'd unambiBuous. The obiectives of such a
detailed but consistent description are discovery and good science and at
the same time the exposure of the traps o( a priori (predictive) diagnostics
and o[ the fallacies of poorly empirically grounded concepts such as insuf-
ficiendy explained variables in quantitative research, or arguments which
are not empirically based at all such as doctrinal arguments, normative
(value) iudgments and ideological positions. These are obiectives which
remind us of the path-breaking work of Theodor Geiger in Denmark dur-
ing and immediarely after W\Vll.lt These objectives arc also very similar to
the ones established by the specific approach under the name of grounded
theory thity years later. This is not the place to follow up on the intcllec-
tual history of a strongly anti-metaphysical and anti-ideological sociology
and it must suffice to sketch here only its methodological consequences in
the form of groer ded theory.

rr Luhmann 1993, p
15, scc abovc, o 5.
" Sec point I I abovc and ncxr scction bclow.
'' Scc T Gcigcr, Vorstudicn zu Einer Soziolotie des Rechts lPreliminary studics for a sociol-
ogy of law), (Acta Jutlandica XlX, Aarhus, 1947). Un(onunarely, C,eiger dicd bcforc hc could
takc his studics to full fruition for socioJcgal research but he left a strong legac-r for Nordic,
abovc all Danish {T Agcrsnap, BM Blcgvad, A r00cis Bcntzon) and Norwcgian (J Gahung, R
Rommeweit, S Rokkan), sociological research. He wrote mainly in Danish and Gcrman and
there are to my knowledge no translations of his malor works.into English.
St'stcms Theorl' artd Qu,zlitatite Rcscarch 55

Civen substantial differer,ces in the philosophy o[ science berween US

Atnerican and European sociology, it may not !e so surprising that there is
no! or very little, direcr interaction between Luhmann's approach and the
approach of grounded theory. It is more striking rhat borh alSproaches
arrive at the same obiecrives from apparently almost diametrically opposed
siarting points. Vhere Luhmann pursues radically accurate thcorctical
c(/ncepts, grounded theory pursues radically 'pure' empirical research activ-
it ies. '' Thc latter rnay have created a wrong perccption of an uncompromis-
ing inductive methodology among researchers, especially when inductive
research is defineC as synonymous with qualitative research in many
methodology textbooks and research manuals.
However, as far as grounded theory is conccrned, the seemingly'oxy-
moron' label is ultimately rather precise in defining the nature of the
approach: 'Grounded theory is a nonreductionist systematic approach to
the simultaneous collection and processing of dara to rhe formulation of
theories that are said to be 'grounded" in the real world of the partici-
pa nt.'15
Or in the words of Anselm Strauss, togerher with Barry Glaser (1957),
thc founder of the approach:
Grounded thco;y is one rhat is inductivcly dcri"ed from rhe srudy of the phcnom-
enon it represenrs. That is, it is discovcred, dcveloped, and provisionally verified
rhrough sysrematic dara collection and analysis of data pcnaining to that phe-
nomenon. A wcll-constructcd grounded theory will mcct four central criteria for
judging the applicability of thcory to a phenomenon: {it, undersranding, general-
ity, and control.r:

Also grounded theory is directed at the fallacies of 'empirical social science

In.ontrast lto quantitative srudiesl, with GT research, rather than testing the
rclationships betwcen variables, we waot to discovcr rclcvant categories hctwecn
themi to put togcther caregories io new, rather than standard rvays.rr

Or, more specifically methodological:

The analytic procedures of grounded theory are designed to I ) build rather than
only test theoqv;2)give the research process the rigor necessary to makc the the-
ory'good science';3) help the analyst to break through the biascs and assump-
tions brought to, and that can develop during, the research process;4) provide

'r That isnot ro admit thcorctical conccpts that have not bccn cmpirically groundcd at first.
'" WC Chenitz and JM Swanson, 'Qualitativc Rcscarch usiog Groundcd Thcory' in VC
Chenitz and JM Swanson, (cds), Frorz Practice to GroundedTheory: Qualiutive Resemch in
Nrrrsizg (New York, NY, Addison-Wcsley, 1986) 471.
A Stratrss and J Corbin, Basics of Qualitdtive Researc$: Ctoundeil Theory Prccedwes and
Icrrrri4rres (Newbury Park, Sage, 1990) 23.
'" Ibid. p 4e.
56 Klaus A Zicgert

rhe grounding, build rhc tlcnsity,.rntl dcvctop tht scnsrtrvity' tig'htly rvovtn,
explcnarory rhcorl rh.rt closclv .rpproximltcs thc rcalrty it r(lrcscnls

Evidently, also this approach leads to the empirical sensitivity for structure
as a pa;;rn fo. potiiLiliti". or conditions, rather than the observation of
unrelatcd incidents or events. In grounded theory this 'condensation' of
concepts is achieved in the form of. a conditional matrix:

[A conditional matrix isl an analytical aid, a diagram, [which is] useful for con-
sidering a wide rangc of conditions and consequences relate,J to the phenomenon
undcr itudy. Thc matrix enabtes the analyst toboth disring,uish and link levels of
conditions and conscqucnces related to tie phcnomenon r:nder study.!"

The consistent grounded conceptualisation allows for multi'directional and

multi-sites comlarisons of phenomena in the form o( a conditional path:
[A conditional path cnablcsl ... thc tracking of an cvcnt, incidenl or happening
irom action/intcraction through the various cooditional and consequenrial lcvels,
and vice vcrsa, to link them directly to a phcnomenon.!'

The construct of a conditional matrix thus helps to

l) bc theoretically sensirive to thc rang,e of conditions that might bcar upon the
phcnomcnon under study,2) be theoretically scnsitivc to rhe rangc of porcnrial
consequences rhat resulti from action/interaction,.i) s;-srematically rclatc condi-
tions, acrions/ interaction, and conscqucnces to a phenomenon.:!

Hopefully, this conceptual work 'from the ground uP' facilitates the con-
struction of multi-level conditional matrices ('international, national, com-
muniry..' or 'communication society, culture, sub-system')21 and so address-
es the maior failings of quantitative research b"sei on variable analysis2t:

[...] Most writings on Ircsearch on negotiations and lcgal procedurel fail to detail
the structural conditions under which Inegotiationsl occur: or if thcse conditions
are discussed, they are brought into thc picture only as a descriptivc background'
Thus, what is missing in these writings is specific linkage of broad condilions to
actiory' intetaction.$

'" lbid, p 5?.

'o lbid, e lsq.
" tbid, p ts8.
"L\ tbid,n t7,p t6t.
lbid-no 162- 163- 16s.
" scc atli t t gistram, 'sociologiska ftirklaringar och Vatiabclanalyscns Gr?inscr: En Kritisk
Analys mcd Excmpcl Frln Mcdicinsk Sociologii {Swcdish Sociologiial Explanations and the
Limiis of Variabli Analysis: A Critical Anel-ysis with Exaoplcs- from Mcdical Sociology)
{1993) 30(2) Sociologir h' Forshring 26; alr.d KA ZhSc(, 'Aufgabcn der Rechtssoziologie als
ioziologic ftir Juristci in dcr Rcchiforschung uod Juiaausbildung' (Obicctivcs of the sociolo-
gy of liw as a sociology for lawycrs in lcgal rcscarch and lcgal education) (1994) li(l)
Zeitschrift fiir Rechtssoziologie 13-23.
2r Sttauss & Corbin 1990,
see above, n 17, p 155.
Systems Tlrcory otul Qu,litotiue F.csearch 57
These [er,r'references may suffice here to remind rhe reader of the rnajor
tenets o[ grounded theory. [n sum, and in spire of thc reinarkably vague and
formulaic advice, groundeC rheory promises to go a long way towards its
stated objective of'good theorv'-but can it attain ir?
Before answering this question, we should nrake brief referencc to a com-
parative third position of .good theory' by rnentionin5l another eminenr
social scientist and his quest for theoiy.!" This is the approach of Stein
Rokkan, a Norwegian researcher and mcmber of the.Nordic Club, of
recipients of large research grants mainly from US American foundations
after WWII to study the'democratisation'of Europc.r, He cannot-in view
o[ his work in collections and evaluations an hugi amount of quantitariue
&ra-bc easily dismissed as having suffered from aspirations to .grand rhe-
ory'. And yet, there is a remarkable u-turn in Rokkan's work ovei the peri-
od of his life.2E His approach is best characterised as comparative historical
sociology. It led him from research on European political sysrems, opcra-
tionalised under the influence of US American political sociology on the
variables influence voting bchaviour, ro a more comprehensive appre-
ciation of-that
the structur€s of the historical and political environmenrs. ln
encountering the gap between theory and the models of quantitative
research, Rokkan shifted to srructural explanarions in trying to.discover
thcory from data'.2e This is reminiscenr oi Sr."us, and Ciase-r, and indeed
Rokkan followcd a similar path by observinB structural dimensions and
designing arca-specific maps for theorerical concepts based on rhe strength
of their evidence from the structural relatiotal parrcrrrs reflected in the
quantitative data. In his way, then, also Rokkan arrived at the conclusion
of the relevance o[ 'well-grounded' theory,ro which is not predictive, which
as a 'process [is] rich, complex and dense'rt and which .aids in understand-
ing the specificity of cases in an analytical way by comparing rhem along
several general dimension'.r2 Most imponantly for our observations herel
Rokkan realised that'good theory'is one that allows for generalisation .nor
... across cases... but within them'.} At the same time Stcin Rokkan's
approach highlights the fact rhat it is not quantitative data per se which

!6 Scc
L Mliiset,'Srcin Rokkao's fiick Dcscription' IZOOOI 4l Acta Sociologica jgl, J94
with refercncc to C Gccrtz, 'Thick Dcscription, Toward an Inic.pretire Th.orvii Culturc' in
C Gccnz,lcdl,The lnterprctdtion of Glu;rc lNcw york, Nt Basic Books, t 9z'3) j, 2S, anorh-
cr.promincnt pionccr of qualitativc rcscarch methodology.
:: L Mittscl, 2000, .<. abov<, n 26. Scc also thc rc{ere-ncc to T Ccigcr, above, n 14.
" It is a fascinaring biography in rclation to social sciencc rcscar.Ih mcthodology and wcll
documentcd by Miiisct,2000, scc abovc, n 26, '
" Miiiscr, 2000, scc abovc. n 26. o 391.
'o tbid.
" tbid, p 39t.
'2 lbid, p J94.
58 Klaus A Ziegert

makes.the grounding of rheory difficuh

if not impossible. On the conrrary.
quantrtrcarion supports rheory building
by a considerable increase o[ rhc
- Potentral lor rhe condensarion ofconcepts based on data,Ja The issue with
the theory-empry use of concepts ro, ,ir. jn
,.rri,,e ;i hiJortir.,
research which esrablished irself as rhe
domiianr jaradism of "rrirur.,
empirical social science research.rr
The detour via the intellectual biography of Stein
Rokkan brings us back
to the issue of the straregic position Jf ,fr...y
ii ,*lri-*'i*.Ji.rt ,f,",
"r.r, rhe
one I"i:.d so indefatigably. Both Luhmann and Rokkan stress,
lrom the-beginning, the other at the end of his iourney, that only well-
construct€d theory relates ro the.rcal world
of the p".,ilirri,ina no,,t,.
wett firtins individual conceprs thar ;.;;;:[;. .;y prr.r..
l-ne,advocated pragmatic acrivism ofgrounded
rheory makes the researcher
easrly overlook the facr that in spite
of all .condensing,, .open, axial, and
sclectivc,coding', sampling and resampling,
, ,t .ory .Innoi L. jir.ou...d
h*.{. mus, be built. And it must be built with concepts that
ngntr,'rr(.the srudied phenomena. But the fit must rerate rikervise
toihc the-
oJr.or the systematic and consisrent developd.rent
."n of conccpts.
argued, then, that grounded theory may send
_r-ll I
qents and hapless researchcrs off doctoral stu-
on a wild-goose chase with the mirage of
good-theory.and a .satuslslon poinr
theiamff i"f""j.rrf r",i.. ,f,.i,
qua[tatrve dara ncver ro arrive. It can"f "f
be further argued that while ground_
ed theory only promises a .grounded'
already delivers.
it.*n ii.-rirr'.,".',r,*.i'"ppr"".r,
.- undeniably and perhaps ironicafly Luhmann exudes theorericar sersitiu-
,ry wirch rs one ofthe required personal
qualities of a researcher as seen by
ii1lio...o.,h:.,y,.the other personal qualitics being a attitude
consistency in the_ research procidure.* More seriouslS
Brounded theory seems not to be able to follow what it preaches
in terms
lj l*.:..:::! sensitivity ,na
attentive_ reader has no '..p,i.i,.. io* .t,. ."" i. fi. ..i[r*a ,r,",,
doubt noticed, .strrctu.e,
conccpts Iike
lt-rne rnteraction'are
introduced "nd
as self_evident formulas and no further
-actlors made to qround them theoretically?
They explain nothing, do not
lead.anywhere, and nd the researche. off on 6rr.'.i".,. e :i'r..l.,."rry

researcher cannot accepr"conceprs such as .structure,

111.,'l-": :_ld:.Otical
ano/or'action' as self-exolanatorn and Luhmann do"s not. By .drilling
down', like Rokkan, to,t..p..iri.i,y
#iues *ith

hkstr6m, 1993,5ee 1[6es "::;,ff;L
n;:nl*.r}ltj,: ii.,'"dt-i*-. ia"a
ff ""i;
"' srrauss & Corbin,
1990. see above. n 17. p 41.
liyste ms Tbeol' Ltnd Qualitatiue Rcscar' 1" t9

' -..oncePts <>f system and sysrem operations at a seanllessly generalisal.)le

'-r never finished grounded rheory.
Ir can, then, finally be argued that systems theory is not only grounded
: : rb in rhe 'real rvorld of the participanr' and ia 'rfieory as process'. lt deliv-
:- 'good science' by thc tight fit of the three elemcnts of researclr: theory,
:'rrhodology, and the phenomenon under study, so that rhey feed on each
r:her. This means that sociological research only 'fires' iI there is sufficient-
'' rich, complex and dense theory. But this requires the procedural energy
:i rescarch m€thodology and a thorough reflection of the rich, compler
self-description of social structure which only society itself can provide.


The systems theory approach does not require that researchcrs start th€ir
proiects at'ground zero'for discovery. But it is also a nrisunderstanding of
rhe objectives of grounded thcory, however empry its theory concepts are,
rhat it can onll,succeed u,ith uncompromi.ing inductive research'[rom the
bottom up'. The fundamental difference between the systems theory
approach and grounded theory approach€s is the ntucb rnare serious refiec-
tiot of tbc'human conclition'r7 in thc theorctical (conceptual) groundwork
of the sy,stems rheory approach. This provides a clear sense of theoretical
direction and gives researchers a head start through the case-specific and
area specific dense conceptual groundwork already done and stimulared by
sy'stems theory.
At a first glance, this triangulation of thorough theoretical conceptuali-
sation, systematic methodological consistency and the self-description o(
society found in the autopoietic patterns of the operations of the social sys-
tem seem( to be particularly apposire in the case of the legal system because
of its universality and an exceptional high degree of formalised self-descrip-
rion. Howcver, on a more thorough reflection, society's law is no different
from any other social phenomenon on that leuel of a functional system,
such as society's economy, societyt political system or societyt families.
This observation answers the question as to whether socio-legal research
needs any specific or distinctive research merhodology in the negative.
However, it confirms that socio-legal research is an ared-specific and case-
specific research with all the advantages of a condensaiion of theoretical
concepts, Undeniably, systems theory has made a valuable contriburion to
this condensation of theoretical concepts for socioJegal research. But sys-
tems theory is useful for socio-legal research precisely because it is not a
'dedicated' socio-legal research methodology but a sociological thick
description that maps society as a whole. In order to demonstrate how this

" tn the sense oI evolutionary conditions for the possibility ofsocial systems.
60 Klaus A Zicgert

seamless nrapping of sociery relates to area-specific socio-legal research, ir

is-sufficient to briefly single our particular corrceptaal roles of this area.r,
These provide conceptual links to be made .inwards' (zoom in) to more
micro-sociological concerns of socio-legal research, like courrroom-com-
munication, or 'outwards' (zoom out) to more macro-sociological concerns,
like global law, or sideways ro orher social systems on comlarable levels,
like the political systcm or the cconomic system. In turn, linking these con-
ceptual nodes can enrich our thcoretical sensitivity for observing and
describing a phenomenonr like the.rule of law', in even better detail that
is, by 'zooming in' in rerms of our mapping device.
The largest scale for our grid, namily thi euolutionary process, must tre
assumed in revisiting the initial rather ab,skact observation of rhe requisite
variety of possibilities for the self-oeation of systems through their opera-
tions. Zooming in on our specific area, and what makes it specific, (ocuses
on this process ol differentiation. We can also zoom in further, in order to
obtain a sharper focus on lawyers, the legal profession, decision-makers,
,udges, and zoom our to examine an arrangement o( the communialion of
second order law observers, that is legal communication. 'I'his communica-
tion esablishes r'tsef as sociery's law by its own op€rarions (the communi-
cetior betueen legal decision-makers as to what they deem is legal) and
invisibilises its paradoxical stand-that it is society and at the same rime
something other than society-by ope rative elosure.We can call this special
communication closed because the references made here refer cxclusively to
operations which are the systemt own op€rations (for instance, previous
legal decisions Iprecedentsl or previous legislation/statutes, doctrinal texts
etc.). we can call this communicaaior, operatiuel! closed and can compare
this kind of closure with the function of (fiotogicat) membranes, eg, thi ear
'drums', u'hich prorect rhe setf-containment of-the system operaiiJns whil.
at the same time optimising stinrularion or irritation of the sl.stem frcm the
environment. lVe can see-zooming outto bistorieal comparlozs-such an
opera.tive closure of legal communication in order to distinguish what is
Iegal by self-reference to the operarions of lawyers as early as i-n Roman law
or tn pre-medieval English case law and the early beginnings of the forma-
tion of a legal profession.
. Generally, when looking from outside in, this puts the focus on systelr
boun-daries and specifically rhe boundaries of the legal system. When look-
tng lrom inside out this is the question as to what constitutes the uniry of
legal opcrations, legal operations can refer to (.interpret') the operations in
other social systems. But they do not have a key ro operate rhe operations of
other functional systems. There[ore, references are
rypically the operations

see Luhmann, le9.J' above, n 5; fo,

" ',ho.t-cut'
,"rl:: ;#1 :::,"t sce
S!'stcms il1eo1, atrd Qtalitative Rasedrch 6l

of rhe referring sysrern, here rhe legal system, and not oI the referenced sys-
temr'-such as reading ,eports, i"nt..prering decisions, esrablishing faits.
The communication rhat drives a/l legal oferations, and thus forms the
boundary of their unity is the ,quaestio iuris'-what is law and legal and
what is not? This is tbc binary distincrioz between lau,and non-law and its
encryption as the code for all legal operarions. In this way, all commrrnica-
rion operatiorrs tlrat relate ro legal communication carry the.law DNA and
can be distinguished frorn all other, non-law operarions. It is, then, the func-
tion of rhe binary code to grridc the selection and confirrnation of those
norms in societli which are deemed to b€ legal norms and which can be
cxpected to prevail over non-legal norms. This better strategic chance of
legal norms to prevail and to be expected to prevail constitutes the function
of lat4 namely the stabilisation o{ some normatiue expectations in society
at ihe expense of others. This is the only function of law which can be
empirically assessed and found with any certainty..o ln other words, legal
decisions are, as legal operations, not designed to achieve certain intended
outcomes (for instance, to stop crirne/ illegal consumprion, or regulate eco-
nomic decision-making) even where such itentions are expressed..r for
instance, in legislation, in the concluding address of a iudge to a convicted
defendant or in the preamble of a constirution. Legal decisions are designcd
to state what the law is and to resist non-legal change.-l'his higher.durabil-
iry'of legal norms compared with other norms is a remarkabli speciality of
rhe function of law and directs the focus of our research efforts on the tirze
dimension of mcatrirg.'2 It is an importanr aspect of the function of law that
law provides a degree of certainty in the face of an always open future that
no othcr communication syste m can. While also law like the rest of sociery
world wide cannot know thc future, it can.bind time'through its norma-
tiye operations, for instance, in a iudicial orC:r, in a u,ill or a contract, and
so makes an open future at least manageable.

'' Thc observation of communication rcsearch that the rcccivcr and not thc sendcr detcr-
mrncs the mcaning of a mcssagc supports this statcmcnt.
'" Luhmann, 1993 pp 60 and 125, sec abovc, n 5.
.'i This vexirg circumsr:rncc rhrt communic:tion cannot control what will acuallv happcn is
:l*'ays thc case but rarclv reflectcd in rhc communication itsclf. Thc morc accurate obscrvarion
that communication is acrurrc llrom Grcck .out of control') makcs an imponant disrincrion
hctwcen the diffcrcnr lcvcls oo which communication opcrates. On a surfacc lcvcl, communica-
rron has to satisfy dcmands (expcctations) of.making s.ns.' in rhe \hings wc say'. On thc dccp-
cr structural (invisihle) lcvel of complex communicarion pattems, cJmmuniiation ."n oniy
ncur to thc rcsle-tive sysrem opcrations and is sel{-rcprodr.rction. Evcrything clsc is .ultra virei'
tor_thc communicarion opcrations in qucsrion. Scc for morc detail KA Zicgcit, .Courts and the
Sclf.Conc.cpt of Law. Thc Mapping of thc Environmcnt by Couns of First"lnsiancc' (1992) l4
'tl Laut Reuieu 196
Tirc otherdimcnsions arc social (constructing generalised mcaning in rclation to what pco-
nle dol and a fatrual dimcnsions (construating gcrcraliscd meaning i-n relation to what things
a.e). N Luhmann, Socral Sysreas (Stanford, CA, Stanford Dniversity prcss, 1995) p:p
62 Klaus A Ziegert

The careful observation o[ the function of law-and limits <-rf that {unc-
tion-leads back to an unequivocal positioning of the legal sy5tem it soci-
ety as one of its differentiated functioral systems. Law is defined hy irs own
operations and not by normativ€ (political) boundaries, for instance, the
feudal class in a stratified societS or a territorial 'nation' state of a modern
society. The conven.ionally so-called legal systems (cg, the Japanese legal
system, th€ English legal system, etc.) are on closer socioJegal inspection a
network of legal commufli(4tion in a historically and locally highly varie.l
array of communication relations between different legal regimcs iu the
contcxts of more or less differcnt social systems. These regimes have their
unity in the network array of legal communication and nor in any individ-
ual, mostly politically defined, domestic regime. Moreover, there is no hier-
archical order between the'sites'to which legal operations refcr internally.
Rather, they ate funetionally related to each other. The unity of all legal
operations as they have evolved locally over timc is global law as ahe uni-
versal legal system of a universal society which moves and always has
rnoved across boundaries.
Mapping the differentiation of society historically on the way to modern
law reveals the many ways in which the legal system is increasing its com-
plexity through structurally coupling with other functional systcms.,r This
in turn increases the differentiation of these other systems and 'lifts'them
irreversibly to new levels of functioning. The structrrral coupling of the legal
system with the political system through the constitutional arrangement of
tbe rule of law is only one, even if historically highly significant example.
The co-evolution and co-operation of law with the fomily system, the eco-
nomic systen and the emerging (global) ciuil society respectively are other
We want to conclude this rather cursory review of the many di;ections
that the differentiation of the legal system can take by mapping the struc-
tural patterns of local and locally developing regimes. These local legal
operations can be observed as being firmly centred in the legal decision-
making, that is, communication it tbe courts. Accordingly an empirically
founded map for the legal communication of any domestic regime will
invariably show local legal communication as an affdy of concentric (cen-
tripetal) cotltt tunicttion fiouls with the cozrrs and legal profession in the

'r Strucnrral coupling is rhc 'flip-sidc' of thc auiopoicsis of systems. Duc to thc sclf-rcfercn-
tial communication that constiturcs social systems, dilfercntiated funr,rional systcms rzzzol
cornmrnic.tc uith each other.Strucl'ural aupling is a structural two-sided form (not a moch-
anism!) that has thc operations of differcnt sysrcms on ckher side. Thcy can only succecd wirh
their rcspcctivc ruropoiesis i{ thc ;ooditions for sclf-refercncc arc mcr by thc opcrarions of the
respectivrly other system. Thc rule of law is such a form that rcquires that rhc polirical systcm
and thc lcgal system co-operatc, usually in thc form of a constiiution and constitutionai law.
See for morc detail Luhmann, 1993 p 45, see abovc, n 5, and cspecially 440f{.
'fbeory atul
'\1'stents Q*ilitati'e Rescarcl: 63
.ertre o[ tl,at cotntttunicatiott netu,ork and all other forms of legal cornmu,
nication-fronr legal doctrine to legal education and legislation-in a more
or less complex periphery. In this form the decision-making in the courts
can be observed as exercising a sriucturing selective putl on all legal opera-
rions in the periphery; thc courts are empirically the real shadow that law
casts over all legal communication. This central structural importance o[
courts for legal communication also justifies directing observations to rhe
more basic, micro-sociological level of socio-legal rescarch, namety rhe
mapping of co rtroonl communicationa' and the quite specific structural
conditions o[ the episoclic nature of bearfugs and iudicial decision-mak-
ing.'r The periphery on the other hand can be analysed in its buffering or
filtering of the 'noise' in society at large and how ir establishes from that the
'seriously' legal communication in the centre. Many legal op€rarions in rhe
periphery, like advice in the lawyers' offices, concluding contracts, media-
rion and arbitration but also legislation, legal doctrine and most legal the-
ory, including critical legal studics and {eminist jurisprudence remain
peripheral and thus optional for thc most part of legal operarions. However,
establishing and maintaining thc validity of law is vital and not optional for
the legal system and can only be reproduced by the legal opcrarions in the
centre. The form of the centre-periphery structure of legal communication
is also ccnsistent with the otrservarion of early regirnes o[ legal communica-
rion, such as tribal law and religious law, and develops from here, among
orhers, to the more differentiated forms of Roman law, early common law
and the medieval lex mercatoria. Here legal communication is already fully
functional in a rather lean form of providing largely only the decision-mak-
ing operations in the centre without much other lcgal communication appa-
ratus necessary in the periphery. Accordingl6 due to the historically and
geographic-locally specific evolutionary conditions, tle p roportiots of legal
communicatian in ,he centre and in the periphery of domestic legal regimcs
can vary considerably when compared with each other. For instance, local
legal regimes linked to the common law tradition have a comparatively lean
(little differentiated) periphery and high status and dominance o[ the cen-
tre, local legal regimes linked to the European continental tradition have a
comparatively huge (highly differentiated) periphery with a relatively high
status and dominance over rhe cenre. Local legal regimes linked to the
Nordic law tradition take a pragmaric middle ground of a tight integration
of administrative decisions and court decisions with both a lean centre and

tt I(A Zicgcrt,
'The Complex Courtroom Communication Schcmc: Towards a Transnational
and Transculrural Inventory for Mcasuring Ltgal Impact Obscrvations from a Study of
Austmlian, Danish, Gcrman and Swedish Courts', papcr prescntcd at the Laut & Society
Association Anntel Meeting, Phoeiix, AZ, 16-19 Juoe 1994.
" Luhmann, 1993, see above, n 5, p 208.
64 Klaus ,4 Ziegert

lean periphery. Subsequentll', one can otrserve rhat these differcnt structur-
al patterns are reflected in di{ferent legal ideologies, legal rheories and doc-
trines, for instance the insistence on different 'sources of.law' in doctrine:
Divine? Precedent? The code? Notwithstanding such normatively invoked
differences, insisted on by reflexive theorics and legal self-descriptions by
lawyers for lawyers, empirically all legal oPerations and courts everywhere
in tire world operate essentially in the same way. However, where they dif-
fer in fact, ie, empirically' is in the structural effects of legal operations due
to th€ variations Lf structural coupling patterns, which have not developed
evenly throughout the world. These differences involve highly complex co-
operation between the various functional systems that evolve
oi do not "rongaaanta
erol"e and which correlate strongly with social indicators, for
instance poverty. Thus we can find, when conducting comParative structur-
al analysis, Breat differences between, for instance, Islamic law and law in
Europe, and also considerable barriers which Prevcnt an easy developmcnt
to rnodern law, for instance, the'democratic centralism'in countries which
still maintain the Soviet design of Socialist Law.



The mapping of societyt law with systems theory has provided us with a
multi-dimensional multi-tier, socioJegal research agenda. It contains the
'classical' fields of empirical socioJegal r€search but 'stitches' them together
in a seamtess matrix for meaningful qualitative research. We want to con-
clude this brief introduction into the methodological aspects of systems the-
ory and its advantages for qualitative socio-legal research with an example
by contrasting an early, in many rsays pioneering, approach to empirical
sociology of law in early 1970 to 1980 with the possibilitics that systcms the-
ory can open up today. The earlier research flowed from the central rexarch
problem o( early sociology of law, namely the issue of the authority and
'binding' power of law, or in other words the question as to what made peo-
ple observe the law and respect leBal rules. This rescarch problem came to
be known under the title of 'the general sense of iustice and the numerous
studies that followed, mainly in Europer went by the label of KOL-studies or

'( Sce B Kutchinskn'Law and Education: Somc AsPcc-ts of Scandinavian Studics into.he
'General Sensc of Jusiicc'' ( 1967) lO Acu Sociolo9icn 2l-4-1; A-Podg6rccki, 'Thc Ptcstigc of
Law {preliminarv i{..uit f it Sezi lo Acta Soc:oloEica 8l-95; CJM Schuyt and JCM [u1s,
'Die Linstelluns'seseniibcr neucn sozio.dkonomischcn Ccscrzcn' (Attitudcs towards ncw
*.i.-...i.-i.' rigi.i"a."l iiizzt 3 lakbtch fiit Rechtssoziologie uncl Rcchtstheotie
S.]'ste ns 'fhcu ortd
-i' Qualitttiuc Rc'-(c.rr./, 6,S

sruclies o[ rhc knou,ledge and opinion alrour l,rwo7 At rhe trnre, these srudics
r\,ere alurost synonynrous wirh entpirical sociology o[ law. For the first rirne,
large sanrple surve).s and questionnaires w€re emplo),ed by s<rcio-legal
researchers in order to find how a general popularion felt a[rcur law, kneu'
about lat,and was more or less guided by iegal, or ar least normarive prin-
ciples. The findings of these studies were, as is typically rhe case with surveys
and opinions research, largely inconclusive as far as the research quesrion
rvas concerned" but canvassed consicierable differences berween different
groups in society especially when differentiated by age, education and scrio-
economic status. In the 1980s, studies of this kind disappearcd from the
research agendas without a trace,
Thcre are at leasr two reasons why sociology of law could not benefit
better from these studies. The (irst and major reason for the failure was the
insensitivity of the quantitative approach to thc social context, in which
respondents lived and worked. The second reason was the blindness of the
approach as to the complex functioning of law; acrually rhe KOl-studies
did not research the functioning of lat'at all. The mapping of society by
systems theory can address the deficiencies of socio-tegal studies like the
KOl-studies while borh covering very much the same ground-how do
people do things with law, and iI not why not, why does the law work, and
if nor why not?
In order to answer these quesrions, qualitative research provides ahe
array o['sensors'which can be brought to bear on society in order to make
the boundaries of the operations of law visible, and the mapping of systems
theory provides the meaningful grid for positioning the array of sensors ar
those 'fault' lines between legal operations and those of other social sysrems
where the visibiliry of the boundaries of law is most likely to occur. [n this
way, we can replace the futile search of the KOl-studies for a 'general sense
of iustice' by the empirical measurement of the rule of law' We could then,
for instance, compare or even benchmark the rule of law of one legal
rcgime, say in Sweden, with the rule of law of anothcr regime whcre it is
problematic, say Ukraine or Vietnam.

'? Sec B Kutchiosky, 'Knowledgc and Attirudcs Rcgarding L-cgal Phcnomcna in Denmark'in
N Christic. lcd), Scdndi auiatt Sttdies tu Crininology Il (Universitctsforlag, Oslo, 1967); W
Kaupcn, 'D.s Vcrhelmis dcr Bevcilkcrung zur Rcchtspflcgc' {Attitudcs towaids thc administra-
tiorr of justice) ll972l I Johrbrth lih RccbtssozioloSie tud Rechtsthcotic 555-$3.
'r For e crhical ov.rvicw ovcr rhesc carly cmpirical studics sec KA Ziegctt, Zm Ef[cktiliftt
der Rechtsaziologie: die Rckonstraktion iu Gesdlschalt duch Richi liorr".d, th. .ff..tir.-
ness of sociology of law: thc rcconstruction o{ socicty through law) (Stuttgan, Enkc, 1975) p
191; and also D Lucke and OC khwcnk, 'Rcch.sbewussrsein als emoir-isches faktum uni
symbolische Fiktion' (Legal consciousness as an empirical fact and symbolic 6ttion) fl992)
I jlzl Zenschrift fih Rechtssoziologie t8 5-204.
66 Klaus A Ziege

As briefly outlined above, the rule of larv can be scen as a specialised

structural form resulting from the co-evolution and co-operarion o[ func-
tional systems, in this case the legal and the politicat systems..e However,
the effective structural coupling of law and politics (rule of law) is not the
only condition for dclivering a functioning law. Here specific forms of the
co-evolution o( law and the family systcm, law and the economic sysreni
and more recently law and civil society (the political system that is nor slare-
cenrcd, itself a result of rhe differentiation of laq in parricular internation-
al law and human rights) enter the picture and togetier spell out the status
and degree of differentiation in a given serting. In rhis scnse the operation
of the rule of law cannot bc measured on rhe terms of the legal operations
only but must be also obscrved in the standards and practices that are
applied in everyday coping in the respective functional systems. This means
that our array of sensors are the quilitativc interviews that are conducted
with respondents not only at critical positions for the legal system (courts,
prosecution, legal profession, see appended examplc plan for a study in
Vietnam) but also at critical positions for the political systenl, the €conom-
ic system, the family systcm and civil sociery (see proiect plan).
The sensitivity of this basic grid of sensors can be further enhanced, that is
approximated to the complexity of society, if sensors are additionally
placed, ie, qualitarive intervicws conducted, at the differentiared levels of
resPective system operations on th€ centre-periphe ry spectrum. For
instance, poor rural families can be expected to cope with everyday lifc with
standards and practices which are quite different from rich urban families,
as much as the standards and practices in local branches of banks may dif-
ler from thc standards and practices o[ central bankers.
The resulting interviews can be recorded and 'benchmarked' as a complex
matrix of standards and practices that form the conditions (co,rditional
matrix) for the rule of law to work or not. lt can bc applied longitudinally
and repedtively for purpors of monitoring and evaluating social and legal
change in one socicty over time; or it can be benchmarkld comparativ;ly
beaween rwo or more societies. ln eirher case the concrete hut largely open
research question whether or not everyday coping be improved by the iule
of law can be approached with a definitive research plan guided firmly by
the qualitatively thick mapping of systems theory.

'e Luhmann, I99J, see above n J.

Systcrtrs Theorl' anrl Qualiuti'e Research

Project Plan
Section Two

Ethnography and Law


Nor intended to be a comprehensive handbook on research

Hls Is
methods and socio-legal research. lf we were writing such a text,
there would have to be chapters on a wider range of methods, and
also on different ways of analysing data. To give an exanrple, the most com-
mon method used in qualitative research is interviewing, and one can
analyse intervicws from a variery of theoretical perspectives.l The most
common in social science is some variant of the grounded theory tradition
rn which data is analysed into themes or codes. [t is particularly popular as
a method in healrh srudies and management, but is also tauglrt on many
sociology programmes internationa116 and is promoted through software
packages such as NUD*lST.2 There are large lireratures one can consult
about grounded theory. and all kinds of debates within the field.
Nevertheless, despite its populariry in sociology, we cannot think of any
anicles published in socio-legal iournals that employ this method of analy-
The three chapters in this section are partly based on intervierving,
although they have each spent a long period of time observing or partici-
pating in a particular institution or community. Thomas Schef{er spent sev-
eral months observing solicitors preparing cases for crown court hearings
in England. His research is distinctive in focusing on the documents pro-
duced during a case and how they are used during the proceedings. He
describes how he developed a method of'tracing selected issues through
the files on thcir way to courr'. Samia Banio observed mediation hearings
in Sharia Councils, the community bodies that decide family disputes for
British Muslims, conducted a content analysis of case files, and inter-
viewed 25 Pakistani women about their experiences of obtaining a divorce.

I See J Gubrium and J Holstein, lcdsl, Handbook of Intetuiew Resedrch: Context ard
M"rlod (Thousand Oaks, CA, 5age, 2002).
I This strnds for Non-numerical Unstructured Data. Indexing, Searehing and Theorising.
70 Rcza B.tnokar atd tr{ar Tr,rr r''s

rrr Br)tswara
Anrre Griffiths condtrcted anthrrrpologrcal iieldwork in a vrllagc
overl period of scven years rvi,h rhe ainr of understanding h()u' wolnell
.-p"*,i* ""a ,t. goueined by [anrily law. In each case' rhe san]e rnethods
*.'r. rr.d (inrervieJng, observation a;d documentary analysis)ahhough
theoretical, rnJ in th.."s. of the last tr'r'o papers, political
using ethno-
ii.r. huu. b.cn a nu.be. o{ studies about legal (ields Practicc
gopi,i *.il"at, not nearly as many as one finds ln likc the
or The languase and powe r tradition
;t;J;i;;i.i;; .ducation sciencc.
since it
f,as arguably made most impact on thc law arrJ society movemeni
i, it."""ii.ilfy compatible ,,.rith the critical pcrspectives in sociology that
riitt iniorrn .rny prp.r, published in socio-legal iournals' Sociolinguists
have examined int.rr.,ion in differcnt institutional seltings' and located
this in wider structures of inequality.r Two orher influential tradirions have
been ethnomethodology and tonu.rsation analysis' Ethnomerhodological
.;i".;;;;i;tt ha"e de"scribed the practical considerations involved in legal
workln'different settings. Conversation analysts have prod-uced a largc
bodl'of work ..r.,-.t.oomr. but are also starting to study interaction
inside legal offices.{
The d]stinction betwecn these two bodies of research' and the method-
ological debates that ttke place betwcen them, relates to the general issues
abo,"ut the foundations of sociology we reviewed in the previous section'
Ethnomethodologist, analysts d isagrce - amongst them-
selves over the iiue of whether studying discourse is sufficicnt to under-
stand work in legal settings.r Nevertheless, they each have a commitment to
addressing how-the peofle they study understand - their own activities' as
opposed io claiming to ino* rno.. as analysts. These-argumcnts become
more pointed in thi structural traditions often claim that ethnomethodol-
ogy ,nd .onu..r",ion are moraily dcfrcient for not addressing rvider social
.t.r.tr..r; whereas they rrgr. th"t critical sociolinguists do not adeguate-
ly address what happens ii.r legal settings, or impose their own political
views over the people they are studying.

t For a gcncral rcvicw, scc JM Conlcy and WM O'Batr, Jrrsr lVords: l-a-w, Languzge and.
Po*er liiiczgo,lL,U"i"ersit! of Chicalo Prcss, 1998). For-cxamplcs, scc J Cool+ and !0-M
o't;; i;;i; i';;" xeitii,ships, Tlc Ethnog,aphy of ksi Discoulse (ChicaEo'.ll'
Uni'ctsitv of Chicaso Prcss. t99b)i e Sarat f.biintioi'orce l'autyers and rhcir
if-a.',-6uli iiisf; "i'i s Trinch,
cti.,,rc "ni'ul
Larira's Natrati'es ol Domestic Abuse
(Philadelohia- PA- Iohn Beniamins. 2003).
'ro.'"i'int.iar.tion, ... M T.r"... and JF Manzo, lcdsl, l'aw- in Attion:
ett".*iti"aii"ari ind'Conueration Aulytit Afproaches ro l-aru (Aldcrshot, AshSate'
' Scc M Travcrs. 'lhe Realin o[ l-aw: Wotk and Talk ia d fim of Crinindl Ldu4ers
{Aldershot, n.te"ii, iggiL t'i'M;rman, Ial&ins Cuhure: Ethaographv antl Conucrsanon
u"i,."i.y .i'p.nn.yi",,ni" Pr.s., t98d); ani D Mavnard, Bad
inatyr,: lirrii"a'.ip'ria-, i'e,
Neu.,s. Good Neis: Conuentiorat Orber in Eueryday Talk ad Chni@l Sertirgs (Chicago, tL'
Chicago University Press, 2003) ch 3.
Etb*tgra1thy ord Leu' 7l

I'his [r.rckgrotrrrtl should help in undersrancling Scheffer,s chaprcr. l{e

-ilers at vilrlous
Polnt5 to the language and power tradition, erhnoruerlrod-
rlogl and.conversariorr analysis,-as -well as inreractionist etlrnography ()[
rhi kind advocaled by John Flood in chaptcr l.u There is also a ,.i.r.,r.:. ,,,
Dorothy Srnirh's paper on textually-mediated interaction. Although no con-
rrrbutor in this collecrion has drawn on this rheorisl, it is worth rioting rhar
she providcs yet. anorher potential resource one can use in sociolle€lal
research. especially since her most recent work iras conccrned proce(lurei in
oolicirrg domesric violence. The method of institutronal ethnography she
Jeveloped in the 1970s invires studenrs ro usc ethnographic irctlods in
rnvestigaring everyday life, with an ethnomethodological sensitivity to local
practices and understandings, and from rhere find ways of addressing struc_
rures.of power and in-equality (what she calls the.relations of ruling-,).7
. What makes Schcffer's chapter distinctive, however, is the way it also
draws on a theorerical tradition assrrciated with Bruno l:tour, and
researchers in the sociology of science, known as acror network theory. One
reason why this has geuerated artention and controversy is because of
Latour\ insistence thar non-human agents, such as machines or microbes,
should be recognised and described as actors in the same way as human
beings. Although this should partly be understood as a provocative philo-
sophical claim, it is also irrreresting sociologically for iwo reasons. lt is,
firsrly, the laresr artempr ro overcome the actlon-siructure divide. pursuing
rhis type of analysis also allow us to see how objects and outcomes are pro-
duced through complex human activities in institurions like scienrific labo-
ratories or, in l:rourt mosr recena work, law courts,E
Scheffer is,.arguably, not as consisrent as Latour in the way he treats
obiects in a solicitort office, like legal statements or files, as h"ulng
However, his analysis does make one think, in a way one does noi "g.n.1,.uirally
[ind in interactionist or ethnomcthodological accounis, about the way cases
develop over time, from pieces of information being brought together, and
of the contingent nature of what eventually b.c-o-., ih. cise. As he
observes, if we can follow .how probes of soiienter an academic paper' (a
reterence to a srudy by Latour about soil scientists in the Amazon forest),
'why cannot we also follow a statement on its way to coun?'.
One can, of course, argue that despite having invented a new theoretical
Latour has been no more sr.cerrful than previous theorists in
over-coming ihe action-structure debare, or that, in theorising about the

. ' Sce M Traw.rs,'Symbohc lnrcractionismand [:w, in R Banakar and M Travers, (cds), Al

lltroductio to l^aw dnd Social Theory (Oxlord, Han publishins- 2OO2) 209
Sce, for cxample^, D
Unrversrty.Press, 1987)l l\i*,
.Wotld as ?rcbleitratic (Mitton Kcyncs, Open
,, M Gmpbell:w7d!
and A Manic,om, leds), Kuowledxe, txOlriencc ind
xkttnE l<eldt'otrs llotonto. Universiry ofToronro P.ess, 1995).
' See B Latour, La Fabrtque du Drcit: lJtE Ethttoydphic du Cotseil d,Etat lpais, la
7). Reza Banakar and Max ^fraucrs

rvorld, he does not adequately describe lived experience. For all the claims
nrade about the deficiency o( orher ethnographic approaches, the actual
considerations that matter to people aa any srage of a legal case, including
how rhey undcrstand the law, are not describ€d. Against this, the chapter
illustrates what can be done by conducting ethnographic rcscarch inside
legal offices, and the potential wider implications for understanding law: it
would be good to see rnore s.udies of this kind, frorn different theorctical
perspectives, being published in socioJegal iournals.'
The researchers in the next two chapters also used ethnographic meth-
ods, although they look at thc experience of pcoplc affected by legal insti-
tutions reth€r than the work of professionals (and it is interesting, in this
rcspect, that the client in Scheffer's chaptcr remains a shadowy figure in the
background, or an oblect to be 'inscribed' in legal files). They are also writ-
ing from a feminist perspectiv€, and this influences how thcy writc about
method, and also the way they prcsent and analyse ethnographic data.
There are all kinds of debates within feminism, and it should not be scen as
a unified or homogeneous tradition.t0 Debates about feminist epistemology
and method can become every bit as heated, in thcir own way, as those
between interpretivists and systems theorists, and this again illustmtes how
arguments about theory and method are central to sociology as an academ-
ic discipline. We would, however, argue that what is distinctive about these
papers is their political slant. They each present wom€n as an oppressed
group, both through the family and legal institutions controlled by men.
Samia Bano interviewed British Pakistani women about their cxperiences
in using Sharia Councils to obrain a divorce. This is a sensitive topic, and it
is wonh noting that only 25 of the 45 women she approached agreed to
participate. One reason given was that 'the research might contribute to the
stereotype of Muslim women as victims of a patriarchal cultural/religious
system'. This is a common theme in the American black feminist literature
and part of the way women experience 'dual oppression'. Theorists like Bel
Hooks recognise that African-American women are victims of both sexism
and racism, but that negative accounts about their own community play
into the hands of the racists.rl

'Scc aho J Morison and P bit$, The Banister's World aad tbe Narute ol l,au
(Buckingham, Opcn Univ.rsiiy Prcss, I992t.
"' Some fcminists arc, for cxamplc, strongly committed to qualitativc research mcthods, and
scc quantilalivc rc!..rch as a masculinc, objcctifying way of rclating the world. Othcrs havc
argued that onc cen use quantitatiw mcthods as a feminist. Comparc, for cxamplc, L Stanlcy,
ledl, Fc inist Praxis: Research, Theory atd Epistemology iu Feninist Sociology (l-ondon,
Routlcdgc, 1990f; and A Oakley, Etpincnts ii Knon itfii Cendet ad Uetbodli ihe Socai
Sciezces (Cambridgc, Polity Prcss, 2000).
f' Sce B Hooks, Fe hist Theory: Frcn Matgirr to Cznter
l&oston, MA, South End Prcss,
EthtcgtaPhY and Law 7j
The c()ncern rvith ethical issues in this chapter is characterisric of femi-
nrst reseaich. Some feminists believe that irhnography, even with the
tnfornred consent required in some countries by ethical review boards, must
alrvays be unethical. This is because the rcsearcher always has more power
rhan the group being studied, and it is impossible to be completely honest
*'irh interviewees about the obiectives of the projcct or how information
* ill be used.rr One way of addressing, if not resolving this problem, is that
fcminists are more open than most qualitative researchers in acknowledg-
ing these issues, and are expected to be'reflexive'in writing about their
ou,n role in the rescarch process. Bano notes, for example, that even though
she belonged to the sam€ religion and ethnic group, she was quizzed about
r+.hcther she was a proper Muslim. One interviewee was pleased that she
was married since 'being married is important for Muslim women'.
Although Bano does not fully explore the issue in this chapter, one can
imagine that she had different values as a middle<lass academic with pro-
gressive heliefs to the women shc was interviewing.
Criffiths is an anthropologist. and it is worth notinB that in this disci-
pline thcrc are specialist literatures about feminist merhods, and obviously
also about conductinB ethnographic fieldwork. The chapter, as one might
expect, is partly an argument for thc value of spending a long period of time
observing, and developing ties with a particular social group: she carried
out fieldwork in a villagc in Botswana over a period of seven years with the
aim of understanding how women experience and are governed by family
law. The chapter argues thai one can only address the experiences of these
women through using fieldwork methods, and recording their life-histories.
This kind of'contextual approach'can address aspects of 'the relationship
berween law and power'in a way that is unavailable ro'formal legal dis-
The chaptcr makes an important contribution to our understanding of
legal relationships in Botswana by providing background information
about the economic and social posirion of women, obtained over many
years of fieldwork, but also rich detail on the experiences of particular peo-
ple. ln telling the story of Ninika, she is engaging in what feminists call
standpoint research by presenting her experience, and relating this to the
structural forces that oppress women. She concludes that married women
are iust as vulnerable as unmarri€d women: 'in most cases, it is men's
enhanced ability to draw on all forms of resources for a family base that
places them in a stronger position than women to accumulate what is nec-
essary to form a household, and thus to elevate their power and social sta-
tus in terms o[ the social world in which they live'.

'1 Sce J Stacen 'Can There Be a Feminist Ethnography?' 11998], 11 Wonren's Sttdies
Itie tulonal Forunt,2l.
;4 Reza BarurLtr a*! i4ax'l'rouers

Scheffer's ch.rptcr and tlrese rwo fentinist erhrrographics are cach povver-
ful and intercsrirrg exarnples of what erhnography can achieve in the sense
of investigating how law is understood and experienced in society. Onc
maior difference is thar Scheffer does not consider moral or evaluative
issues that arose during his fieldwork: by focusing on the careers of docu-
nrenm or'paper trails', he is not concerned v,'ith the fairness of law, or in
assessing the versions presented in court by different parties. ln the same
way as Erving Gof(man, he can be accused o( a cvnical or playful atritude
towards human beings, of stepping back from their political conflicts."
One can contrast this to the engaged moral tone of feminist ethnography.
The obiection hcre, however, might be that, in siding with women as an
oppressed group, other voices are not heard. Men in Particular are nol paid
much attention, and one can argue that Griffiths rather too quickly dismiss-
es the accounts, both by the husband and mother-in-law, that do not suit
her political sympathies.
There are all kinds oI approaches and theoretical traditions in ethnogra-
phy, and we have only touched on a few issues and debates in this introduc-
tion. Extended fieldwork of the kind Scheffer used in studying a law firm,
and Banio and Griffiths employed to address the experiences of womcn, is
a method that is still not widely used in law and society studies. It allows
one to address lived experience in a way thar is nor opcn to surveys or cven
qualitative interviews. It also opens up rich possibilities for theoretical and
political debate. To give one example, a poststructuralist might want to
question the assumption informing each of these chapters that it is possible
to arrive at a determinate account of what really happened.lt Sociology still
sometimes attracts adverse comment from outsiders for being highly self-
conscious and reflective about method. We would argue that the level of
methodological self-consciousness in these chapters is precisely rvhat makes
sociology worth doing-

r, Scc E Goffman,
lnteraction Order. 9831 48 Anericat Soaolo4rcdl Reuiew l.
'' See M Travers. Qnatitatue Research Thrc gb Case Studks llondon, Sage, 2001 I ch 8.

Courses of Mobilisation: Writing

Systematic Micro-Histories of Legal

I a) to make mobile, or movable 6) to put into motion, circularion, or us':
2 ro b.inB inlo rcadiness for immediate activc scrvice in war
3 rc organise (people, resources, erc) for activc scrvicc or use in anv emcr-
gency, drivc, etc.
4 to brcome organised and readn as for *'ar

TNstDE THE oFFtcEs, paper-workers produce and combine documents.

I Their desks are covered with paper: with files, bundles and briefs. And
Irhe production goes on. Solicitors dictate notes, secretaries type letters,
and the legal clerks compile sets of evidence. lt is exactly through these
paper-trails that things are set into motion for the day in court. In other
\.r'ords: statements, arguments, narratives and their human carriers are
mobilised to make a case.
The ordinary case-work seems to a large extent a face-to-file interaction.
The mounting dossier indicates what needs to be drafted, collected, posted
ae:t. It gives the'full picture'as well as the missing links. At this site of the
legal machinery, the socioJegal ethnographer faces, however fascinated by
courtroom dramas, a writing culture.
Legal mobilisation, however, includes face-to-face work: people need to
stand and speak out for the case in court. They need to articulate the writ-
ten, to stage it, to bring it across to an audience. The day in court requir€s
an ensemble set to co-enact the matter'here and now'. The case, therefore,
involves a whole bond of players, props and materials. The socio-legal
ethnographer deals, however infected by'archive fever' (Derrida), with an
impressive performative culture.
And there is more: the interplaS the competition, the terror of failure. At
least two social projects and individual ambitions are at odds here, putting
the respective other under pressure and tension. The cases unfold, and are
7() I'bomos Srltl.lcr

elaborated in the conresr between defence and prosecurion, borh ready ro

challenge, weaken anJ undcrnrine rhe opponenis case in fronr of a deadly
quiet iury. The socio-legal erhnographer faces, however fascinated by rhe
means, forinars and methods of case-construcrion, a conringelr and risky
power-gan)e. Comperirive mobilisarion.
What can socioiogists learn from legal proccedings and the ways that they
are conducted? And how can rhey organise this learning? In the following, I
suggest a number of methoJs and frames that can be used to reveal whar
happens in legal practice or, ro be more precise, the craft required to presenr
a criminal case.: The m€rhods are dcsigned to stress rhe temporal and
sequential features of legal work. They link what is commonly hcld apart:
pre-trial and trial,r preparation and event, text and hlk, evidence and law.l
By doing so, they introduce the socio-dynamics of legal proceedings and the
ways the defendanr's or witness'view is translared into legally-relcvanr argu-
How can one address these differenr sites anC marerialitiesr of legal dis-
course empirically? This paper proposcs a sequential analysis of mobilisation
that is capable of connecting what usually remains sepaiatcd. The concepr

'Thcsc,r-rc_rnrplolcd in a rcscarch-pruicct tirled .Compararivc Micro-Sociologv of Lcgrl

Pro.ccdings', funded hy thc Gcrman DF6. This has cnablcd'four ficldworkca-Kar] Hannkin-
IIlics (Gctmany), Alcx Kozin (U5), Livia Holdcn (ltaly|, plus rhc author (UKl-to condu.t
casc-srudics. Thc chaptcr prcscntcd hcrc stcms from ;hc:uthor\ two ycar pilocsrudy. Scc
_.r D McBarnca, 'Prc-trial Proccdurcs and thc Construction of Conviction' in p Carlcn, (cd),
The Sociology ol Laut lKcclc. Sociologicrl Rcvirw Monograph 23, 1976) orovidcs onc of thc
tcw c.rly socio-lcgal studics concuttating on thc prc-triai 5hc notcs that .intcrrctionisr dctail
cannotgovidc z total cxplanatioo [!l of tht proccsscs o{ conviction. In rhc first placc, h undcr-
slates-thc srruftural influcnccs of rhc lcgal sysrcm! rulcs, chccks and dcfinitions on thc con-
sttu(tron o, rcalir,v. In rhe sccond placc, it underplays how much thc cvcnr and information
obscrvcd.in cou.r hav. bcrn shapcd long b.forc thc stagc of public triat is rcachcd'
[75); my
.xclam-ation mark. Despitc hcr shon<uts in dcscribing the itructurcs wirhin which lewycri
wo(k, I takc_ McBarncr! critiquc scriously. Thc iotcratrionisr problcm is, indecd, that rhcic is
1"."1.:p! Ior the procedurc and the rolc of the prc-producls accumulatcd ovcr a pcriod of
ttntc. h is, howcvcr. no solution iust to as.ribc agcniy to .thc law'. McBarnct canaot sirow Doz.,
thc law tets enroll€d in criminal prc-trials and trials. Shc docs not ptovide a praxcology show-
lng how.'thclaw' ao-produccs social siruations. For studics of legal pcpaiation, sci also A
sa(at.and w Fchrincr, D iuorce lauyers and their clianrr (London, dUp, 1995); and A Konradi,
loo linlc Too [:rc: Prosccutors' Prc-Coun Prcparation of Rapc Surri;or.'
Soaal lnqrirylM Ttaucrs,Tbe Rcality ol Lawiwork a"a fa[* i, i iii-"iC,i^iit
lli97) 22L-dw ond
(Aldershot, Danmouth, 1997) analyscs how lawyct-clicnt telations cvolvcd
during mcctings
bcforc trial.
_ fiere is, of course, a largc amount of rcscarch on the tclationship lrtwccn tcxr and ralk.
for an orTcrvicw, sce M Mulkay, 'Convcrsations and Tcxts' (1985) 9 Human Studits; or D
Smirh. 'Textually Mcdiatcd Social Orgaoiz:tion' ll9!,SJ gg tnterratiorril Social kieacc
,lorrr,ral Scc aho rhc-arrrhor! study on rhc cntanglemcns of tcxt aod talk in thc Gcrman asy_
lum proccdure, T Schelfc\ Asylgeu'ihang- Eine ethnopaghische Anahse des deutschin
Asyh'erfahrens lSwtgarr, Lucius&Lucius, 1999).
. ' -See T Scheffer, 'Materialiries of L€al Proccedings'in (2004) 26 L tenational Journal for
the Scntiotics o{ Law.
(,t11t;, s , 'I M,,lttIt:.ttit't1

':,rbtlisittion;rlkrrvs rrs
to sce the,open,phirses l,eiorc colflicts are set-
: It clrt.rddress rlrc legal groundwork in a casc arrd rhe tliificulties oI
.Jlt5lltF tllt5 ln court.


- 'iinran's question of'n,har
goes on here?'is at the heart of nricro-soci<>-
:r;al rescarch. Many sociolegal scholars srarred rvith similar curiosin,:
r:it goes on in courr? Vhat is all the paper_work abour? Whar hrpperis
- clienr-barrister conferences] Interpretative approaches argue that .whar
: ..es
on' is hard ro pinpoint since the participani; do nor arr;hure rhe same
-eaning ro wh_at took place. By focussing on mobilisation, .what goes on,
::pears in fl differenr light. Ir does nor come inro sight by interpreting
t:,ces u,ithit the focal siruarion, but hy weighing them in the
cot,rse-.rf p.c_
::d ing and succeeding sitrrltions.
.{s a micro-socioJogisr, one can distinguish hetween closed and open
-:eraction sl,stems.J Closed ones rely greatly on rhe
elemcnts rhar c()me
: rout during their course, rvhile open systems are grearly
dependent on and
:raped by pre-fabricared enrities. Micro-scrciolog[t, ,."rn rarher
..ith closed slsrems like face-ro-face interactio"n. Thel,havc
less ro s:ry
: h,,ut.open sysrems and the r.r,r1,s in u,hich they hinge on
and conrrihure to
:rtendcd. p.rojects strch as polrtical campaigns, rese"arch processes or
:e se-work."
The narure of inreraction analysis changes fundamentally when one
.:ddresses this wider conrext. h nroves closer-to what
participants are con-
ironted with and achieve in each new situation. The parricipints
of C.or.rn
Coun hearings, for instance, are confronred with ,rrt.*.ntr rnd interviews
:hey have given.at ea'lier stages of rhe case,7 They rely on
these prior state_
nenrs ('materia lit ies') u,hen constructing their courtjperformances.
In this
.\'ay, the counsel and wirnesses in court resemble,consumers,s:
rhey pick
up, mix and modify legal 'products' in the course of their invenrive
t res. Acrors, in this view, aurn out ro be
creative and ractical,
rather than
passively responding to each new situation. This relarion
of products and

rler Konvcrsation. Zur Konzeptuatisierung von Asvtanhorunsen

"i."T:,r_:l{l.ltlscirs Anatyse ihrcr Eroffnuns. in (iee8 r 24 J cr,*e,,"",it" z,,tsl.i;1t
M rravers and J Ma-nz o, lcds), r.au irr Actiott: Erttnontcthodotctgictrt
".,i I:_,.".1-:L..:::1",.y
lt.t Lo ?rsottot, A'Mlyticat Apprcdchcs to l_drz (Aldershor. Asheare. 19971.
ot,Legal.pro.ccdinss'(2004) t1 tncruaiAnat
..-.)..: l-)P,.,;jMaterialitics
)(nltor.s ol t au.). lhe posrlon dev€lor€d hcrc relers back ro Foucault's concenr ol lotrn fo,
the sratc
ment in M loucautt, rl e Archacoton ot Knowtcds" d,d rh" D,;;;,;;"Zi-ii,i,.il
Tavrstock, 1972). tt""a"",
M de Certeau, Trc Pracnrc of Everyday Li/e (Berkelen CA, Universiry of California prcss,
1984 r
'I'i:onas khcffer
itt cottn.hearittgs:
rheir consumntton ntight eqrr.rlll char'tcrcrise llrttciPartts
pr.rdr.,, u" thent for all practical purposes' l\ot every-
,i-t., ,afy "ud with-
situarion is created
iirii* itt'", ,r*r*t
and gains meaning in the iocial
in its course. (ound in
A similar, but more categorical version of this canorbemodes' For
r-ri.r."f lit,l*tion ,,f di(fitent communicative layers
i^.:],;:;il' i;,;;;.,r".;'rt -ieh clo-sed intcraction-svstems anv widcr
."*f not be reached' Luhmann argues gencrally that
",..r.,ri.ii*ts int"'"ttiou and societv has become unbridge-
possible to vieu
ablv wide and deep. (...) At no other time has it been less
...p*ta of interactions and to consider adequate
;;;';;;ri';il; "t dance' contract'
ih.oriaa ,h"t .onaeive society as 'commerce', exchange'
chain, theatre, or discourse'.ro
ai'itit f"i.*, one can discuss further consequenccs of-the of
move. Decentred situations not only demand new franres
also challenge the heuristics connected to the schem: o{ closed
.yrt.-r. Th"... heuristics a(e systematically spelled out in. cthnomethod-
oioeical Conversation Anall'sis (CA). CA considers everyrhing-roles'
sequentially accomplished by co'
*."i.i f...rfr,y etc-as being locally
'pr.'r*i p".,i.ip""ts.
tu'n-t'y-t'in exchanges.tn ordinary and
By anolising
institutional .on"..rr,io,l, CA ains to'ireserue the details
of local order
its course' for the analvst"' and provides a useful 'wa1'
of '"t',.rrir,i.
-- seeing'.
ii. of proximity triggers further e(f€cts: ii disciplines the
lt binds the analysis to iirpirical data and encourages
;;;i;;;. normally take'for Erant;d' The radical .localism in .cA
Ln*.r',i. -"nn., in'which moJt social scientists make uncontrolled infer-
...?t f."rn their data. As Garfinkel has argued, what matters should be
oir"*oii" in r*u*ithin the 'phenomenal fiell"''l Accordingly' no srructural'

gcj ): 'Writing and

"N Luhmann. So(idl Svslcrtr r {Stan ford, CA, Stanford Univcrsity Prcss' l
i, ."t.iUlc io withdraw from rnicraction syslcm\ and ncverth'lesr to communr_
".i.ii., -"f.. lorm or
lr,. .riitt f""t.".ting societal conscquenccs. By dcciding to ust thc communr"rrvc
*.iti.e- onc can reacf, morc addrcssees over longer pcriods of time' butrhk dcrision suggcstr
drllcrenn'tlon oI
thrt oie withd."w from intcraction, i{ it docs not forcc onc ro do so' lhc
ihir.od. of.o..unication lrom interrctional nexu<cs has mor. than qu:nl'tatrv. stSnrr'
.l*.,ir-.""rr* ...J..r *",r;'e,h'i tl'lJioi b' *ithin interaction and therebv
]-n .uniint"rion of,tt. diff...n.. b.t,".n t*ictl and 'tt"intd
intcracrion to which thc societalsystem
and in_tcractional systems can oricnt themselves' p 427'
ro l6il. 4J0.
n -.fai..f Prcgrant:
e'il"*fr, lntroduction' in H Gar{inkcl, kdl, EthnonrcthodoloEy's
wiiirr-o"i o**t Alhotism ([-anham' Rowman & Little{icld' 2002) 6'
' ; :il occur
p.imary commitmcnt that mcaningful soci:l order< do not' cannot'
l! c"rn"l.ri "im\
,. , .....t,rri f.'.i Thev must be cmpirically wirnessable' and the rnalyst murt rrrser(c
,l.L-*i,rJ.t"tf . oi p."ctice ln A Rrwl'' ibil' p 8'
Corrscs ol Mohilisation 79

irllcgedly onrnipresenr varialrle can be

iust taken for grantcd as significanr
for the husiness at hand {nor even the rhree classics: class, gender and race).
Everyrhiug that matters is taken up in the turn-by-turn processing of mean-
ing. It takes place on the (observaLle) surface o[ social interaction.
The heuristic underlying the analysis of mobilisation, while agreeing
with some cssential fearures of cthnomethodology (such as observabiliry,
sequentiality, interactivity), differs in some respects concerning the unit of
analysis. Firstly, it questions the frame of analysis (closcd interaction sys-
tems) and therefore the status of proxinrity and localism. By asking what
goes on the analysis of mobilisation includes 'necessary' pre-products and
their circulation across time and space. Secondly, by tracing statements or
narrativcs through projects o[ representatioo one does not prcsuppose
whether they succeed or fail or how far they makc it. Th€y arc, for vast peri-
oCs, unfinished and contirrgent enriries, not ready yet to be fully exposed to
the focal discourse. Thirdly, this kind of analysis transgresses aJ well as
links sevcral sites of case work, such as the police station, rhe law firm and
rhe court itself.

Addressing this wider conrexr creates several merhodological problems. To
give one example: the complete legal case-work is impossible to record. The
*,ork of mobilisation is, to a large extent momentary, short-lived and pass-
ing. Given rhe multi-sitedness of mobilisation, the ethnographer can only
get in touch with a small portion of the work. Thc contributions by the
clienr, for instance, remain hidden while the lawyer's parr seems wcll-docu-
mented and, therefore, prominent in the analysis.
Tracing mohilisation has to cope with what Marcus calls, a .multi-sited
field'.rr Casework takes place ar the clicntt home, in the law firm's offices,
and right outside the courtroom. It takes place as well in barristers'cham-
bers and the interview rooms at court. The mobilisation of cases takes place
via correspondence, telephone talks and frequent meetings. While tracing
statements on their way to courr, one can get lost in the intertextuality of
legal discourse.
_ Fortunately, it is not just researchers who are confronted by such prob-
lems. The lawyers have to deal with the sheer complexity of unfolding pro-
ceedings as part o( their everyday work. Despite the piles of incomingcalts,
Ietters or documents, they need to ensure that no important details, no
potential trump card, no official deadlines are left out. They try to keep

" G l\4:rcus, Ethnography throrgh Thick and

^Prr<s. 1998),
Thin lPrinceton. NJ, princeton University
E0 l'h<tn:as Stlrllr'r

:rack of rhe circtrlrtitrg st.terr)ents tltrough chcck lists' skerches or dia-

g.^,us.'' Soli.iru,s rry L, .,,utr.,l rhe srltetnent's clrecr: ils weight ior rltc
fase; irs distriburion inside and ourside the defence errsettrble l-he
for rhe study o(
,rrn"g.rn"n, o[ conrplexity turns out to be a focal isstre
Soi.-."rt necd to be delivered right on rime and presertred in standard-
ised bur nonetheless shifting and tii.ky circumshtrces'" The dtraliry of
:;;;;;;;;;nc.'u ."s.-p,tpararion senerares certain modes of
pi".ni"a tf"*., ",,i
flexi[',1e, muki-oPtion'l ttt'Pts) on.thc one ha'r{.a1d-1
*hol. ting. o( speech/writing acts. Case-delivery and case-preparatton are
;"i;; ;ll ,!prop'rir,.ly grrrpld "s homogtno's wriring and talking''' Thev
i...t irp,,ir.a ri i'ybrid for.t (as writren speech and spoken texts)
supportinS, exercising and anticiPating one another'
'ir.ing ii',.r. .n,, nll.n,.n,r, on. g.,! rhe impressiori th'tr preprrati.n ard
p.e-t,iala-rd trial, plan and evettt have been wrongly kepr apart'
Both sides l,.rt., understoo,l as co-consriruring facers rhat catrnor be
reduced to one anorher. Preparation, in rhis view, aPPears not only as help-
ful investment prior to the iase-delivery, bur as well a source of the eveni's
complexity. The defendant, for insrance, is prepared {or and ar ihe s:lme
time confronte.l by prepared opPonenls. To rake the ftoor'here and norv'
means for iter/hinr io irr(ertextuirl field {of prior sratenrerrts'
^ddr.r, "n
statements by orhers, one's own testimon)'and the others'testimonies) thar
easily turns into a minefield full of notrilised trunrps ard traps'


How can one investigare extended and multi-sited proiects? One r'r'ay !s to
focus on its focal pr"oducts'in the making': the statements, pieces of evi-
dence, and line of defence. From this perspective, I approach hcconirtgs as

r4 L Suchman.
'Making a Case: "Knowlcdgc' and 'Routint- worl in Do'unrenr
p-a,cti".i i. piiil iii.a-,,J ,.a c n."thicds), wortplace Sr dics: Rccol*ns work
Practite and tnfotming Systea Desigz lCambridF' CUP' 2000).
ii S.. p o..*,'c".i..iJ r"la.r.? in cor.,.o",n cross-Examination: The Case of a Trial
f"t n"p"' in p O,.* r"a t Heriiage, kds), Talh at wotk' lute ctio i" Ittstihnrcnal Settittgs
tcambiidse. CUP- 1992) 470r and 5 Harrh, 'Fragmented Narrative< and Multiplc Tellers:
Vi.... "ii o.f.ndrnr Accounr. in Trialc' (20011 3 Drscorrse Sar/rrs'
P Drew,'Order in court: The Orgaz-ation ofve$al intcrdctio" it' fudi'
'i S.. M Atkinron
''i'i..settin}s (.A.tlantic"nd
.ial Highlands, N.J.: Humaniti€s Press, !979)'
rhe lntake Process in a Public velfare Agencv'
i" s '$('h;"k., i;;J; o; 'P."co,d, Filn'*,i "ndDossie$ in Anrctica Lile (New York' NY' Russcll
Sage, 1959).
Co*ses of Mol,i!i:ation 81

: ,n,-rttcrmohrlrsed singulrrrries rather rhan as a bstract/d ispersed collec-

:.r es'o: rhe mobrlrsarion of an alibire
for instance. This analysis of mobilis:r-
:ron. tracks down single features that travel through siruations and are
narked by their various involvemenrs.20 Thrdugh mibilisation, becomings
eain.weight, impact, force-and join together to"configure new cvenrs.
This focus on becomings is meant to-sharpen how ilaw-in-action'r pro-
cceds a! a local level-but complements this with an appreciation oi its
translocal entanglements.22 At this point, I would like to rliommend a kind
o[ manual to guide the investigation of legal mobilisation. Thc manual will
emphasise methodical implications of the perspective and how it rranslares
rnro a series of research actiyitiesr

lll The expert\ presentation ofthe case: In my research on English

criminal proceedings, the soliciror's introduction of single cises_
iniriated by 'Vhat are you working on right now?'_wai a useful
srarring point. My informants provided brief and pointed stories
o['whar the case is about,- This account often fiused on a kcy
incideot rhar was understo<rd differently by the prosecution and
dcfence. The solicitor's presenration was usually divided into a
factual and a legal section. He or she described;whar happened'
and'some technicalities'thar were retevanr to rhe cascwork ar
that point in time. It is importanr ro note when exactly rhis nar_
ration occurred in rhe legal process.
(Z) Selccting singlc r'ssres; These often quite briefand concentrar_
ed narratives convey what my solicitors call the .heart of the
case'or rhe 'crucial poinr'. From the soticitort point of view,
tlris is what one uses to determine .no*' *hether'Jis is a win-
ning or losing case, or a case thar should or should nor go to
court. The 'heart of the case' may rvell be a medical attesration,

rr.C Delc-uze
. and F Guaorri, A Thousand phteats: Castiralism attd Schizophrsllia
Athlonc, t988).
l'.J kkl.o
'T!:P^:lliry of Mobitisation: Fo owing thc Risc and FaI of an Alibi-story on
to Coun' (20031 31 Journal {or the Thzory ol Social Behatiour.
"' This is similar to l:rouis conccpt of immuiabic mobilcs. For rhc legal contcxt scc B
l-a1og,lk;cn1ifi1Qlic;ts and Lcgal OLicctivity-lon.ait o{ thc C-onsciia jii",
rn,A-Portatc, (cdl,.Making Persons azd Things (Cambridgc, Cup, 20O4). "rLU.*,..y,
'' M Travcrs and JF Manzo, (cds), l,aut in Action: Erhiomcrhodolotial and Conuersartot
Analyti. Approdchet to l-aa, (Aldcrshot, AshEet ,1997).
" A rich linc of rcfcrcncc to approach bcc6mings is provided by thc laboiatory srudirs in
-xlcnc. and technology
Srudics (STS) cxamining work/rcscarch proccsscs. Sc. cspccially B
LAtout, Sciencc in A.tion: How ,o Follow Scientists ani! Engincers thrcugb
("C.T!ridF:, MA, Harvard Societt
prcss, t987) S t r"",. poiaSro;i
Holi, iirry tt'"
Realtt ol Scienc-c S,u/ies (Cambridgc, ",
MA, Harvard Universiry prcss, l99ill and li tetour
and ) wootSe( t bordton Life: Socinl C_anstnlcaion olScientilic Faas (Ncw
iork, N-,, Sage.
1l :*"l.rllr. black
of scicntific practice cthnographer. f*. ,fr. i'...rifyii
-r.11?1. and
thrngs pcoplc. I hcy turn back ro rh. uncomplcted bits and pieccs in order to unfasten the
complex, knotry, muhifaceted nature of rhe Iatei tidied, orderly and tfr.t-Uo*ia ;L.",.
82 lhtnnas Scltc[[tr

the eye-wirness' identificarion of rhe pcrpetrator, or a ps1'clro

logical report on the accused' liabiliry. Ir ma1, be something
seemingly minor that the researcher could fail to notice when
studying the file on her own. To di(ferent extenrs, the heart of
the case will possibly attract the attcntion o( both parties, the
prosecution and defence. This, again, depends on the stage of
the matterl in the finalsragcs, ccrtain circumstanccs arc present-
ed as having dictated thc case right from the beginning; during
prclinrinary iuvestigations, in contrast, certain foci are present-
ed that may entirely vanish from the agenda in due course.
13) Tracing issues through paper rrails: How can one trace issues
through the files on their way to court? It is important here to
identify when an issue is initially recorded (which does not
mean that one gets to its origin) and how. ls it in an official let-
ter, an internal memo, in one of the solicitort to-do-lists or 'just'
in a scribbled-not even filed-memo?
The counter-accusation: In a burglary case, I found the firsr
entry of the 'self-harmer'-hypothesis in a file note on a tele-
phone-conversation that the solicitor conducted with the co-
accused partner of the client. During this telephone conversa-
tion, the loung woman mentioned a talk wirh a neighbour. The
neighbour made allegations about the complainant. She might
have inflicted the reported/photographed injuries (deep cuts
under her left eye) on herself. The co-accused was advised to
inform her solicitor right away and to instruct him to take a
statement from this neighbour. This piece of information, she
added in the note, seems'really important'.
From this point, tl',e issue can be follor,r,ed all through the file.
Does it occur again? Where is it mentioned again and how?
How is the issue fostered from one entry to the next? Every sin-
gle file-entry is to be noted!
l4l Actiuitics related to the schcdule of thc proceeding: I gained a
tretter overview of an issue's 'social career'2r by placing it in the
time-line of the proceeding in question. The date of the charge,
of the indictment, of the Plea and Direction Hearing, of the
deadlines for disclosure or the trial hearing provide vial contex-

It Tlis mctaphor is uscd in a wide range of studics. Sec, for cxamplc, A Caobrosio, C
Limoges and D Pronovcst,_'Rcptcscnting Biotcchnology: An Ethoography of Qucbcc Science
Policy' in (1990) 20 Social_Studies ol Scieace; H Doeriog and 5 Hirschauer, 'Dic Biographic
der Dingc: Eine Ethnographie muscaler Rcprescnietion' in K Amann and S Hirschaucr, (cd),
Die Beliendung der eigener.Kuh*: Zur Ethnographkchcn Herausfotden ng Soziologiischer
Ezrprne {Frankfurt aM. 5uhrkamp, 1997); and I Koptyroff, 'The cultural biosiaphv of rhings:
commodification as process' in A APPadurai, ledl,ihe So al L'tc of Thiapsi Cin'ntoditres'n
C'ltnal feispcctiue lcambridge, CUB 1986).
Courst's rtl Mr tilisrlr(rrr 8-]

rual orientarion. when, relative to tlrese st.lgcs irr a casc, does

the is)ue arise? This lxcl<ground helps rhe rcsearcher r() gcr iln
idea of horv arguments are charrnelled,.rdjusted antl stiurulirted
in the course of a case.
Tinte for prepararion: The Pre-Direction lleariug rr:ok place
two weeks ago. Today rhe matter is listed for an application b1
the defence asking for the full disclosure of the medical n<.rres,
rePorting, the medical history of rhe complainanr. The prosecur-
ing barrister .rpplies for another adiournnrent: 'The nrcdical
rcPort can be served within a rnonrh's time, my Lord'. The
Counsel for rhe defence complains atrout rhe further delay and
then accepis. In [act, nobody is really upset about the extra
three weeks until the rrial hearing---obviously aparr from the
defendant who is awaiting the trial in custody. Still, the defence
has Bot plenry to do until the day in courr. The account in the
defence statement, for iostance, was still nor backcd by any
additional witness-
l5l Reconstructiue interview* How sonterhing lxcomes a ke1,
issue is not just a mrrter of file-analysis. The trusted researcher
regularll, faces instances of case- and file-work. Sonretimes the
issue to rrack down is a topic in a soliciior-client meeting or.r
conference with barrister (and wharever pre-trial nreetings rhere
are in cther iurisdictions). Intervieu,s rvith cascworkers are:rls<r
useful: one could call these interviews as well [riographical,
although they do not deal wirh the biography o[ rlre interviewee
but with the biography of a statement or narrnrive. The
researcher can ask those involved about how a point did come
about and was u'orked out.
(6) Data-sbeets: In order to trace the career o( a lrc<,ming through
the course of the pre-trial procedure, I put the following infor-
mation toBether. In the aforementioned case of burglary my log
€ntry took the following shape:

Date Participants Incident Content Function for

12t6t03 Solicitor- Te!ephone Neighbour Neu, line ot
co-accused conversation claims that argument
'victim'is + potenrial
self-harmer evidence for
the defence-
64 Tbomas Scbc{fcr

The logr The 'lxcoming' in this case can be described as rhe .self-harmer
statemcnt'. lts trajectory commences with a telephone conversation, in
which the co-accused mentions a rumour regarding her neighbour (thc
potential wirness) and what he oncc claimed about the accuser (.S€l[-harmer').
According to this potenrial statementt she could have injrrred herself as she
allegedly did several times before. !t takes a lor more case-work (and
entries) until the neighbour is cnrolled as wirness and until his starement is
available as element of the defence. The rumour, for instance, needs to be
documented in order to involve others. At a later point, it nceds to be
authorized or connected to an acror and hiVher social credit. In courr, the
statement needs a human voicc in order to be staged in front of a iury.
The career of this wirness statement was traced through the whole case file
and the rclated encounters. Eech mentioning or reference triggered new
entries in the daa-sheet, The sheet, therefore, gathered together the traces
left by thc casework. Thc traccs represent, as well as perform, this .bccom-
ing'and the activities necessary to fully mobilise it.


Tracing mobilisation will not lead to singularised stories. As in rhe example
above, thq recruitment of.aritnesses cao easily be put side by side with ihe
recruitments in other cases. Such perspective across single cases rcquires
some kind of formalisation. Here are some formal themes one can find in
the logs which make possible further inquiries into the spatio-temporal
characteristics of mobilisation.
Inuoluement and circulation: Who gets involved in the course of
mobilisation? How, for instance, is a statement distributed .*ithin the
defence ensemble bcfore it is disclosed to the prosecution?2{ Who is
excluded from the exchange? By following the log entries, one
encounters a sequence of different circles: from one-to-one consulta-
tion to complex divisions of labour.
Rhytbm and frequencies: How fast do statements circulate ? What is
the frequency of exchange in relation to the procedural stages? These
queries led the researcher to examine pauses and clusters of cas€-work.
They hint at lawyer's decisions on how to allocate and prioritise work.
They reveal what panicipants might experience as ihe routine or
thrilling phases of a legal case.

2' As I noticcd during my ficldwork

in a law firm, thc dcfcncc fosters its narrativcs end lcgal
arSumcnts throughout thc prc-trial in a protcctcd cnvironment. Herc, rhcy collcct vrlua6te
points, draw thcm togcther as one coherent casc, nrc,resr thc ourcomes and icnair thc remain-
ing weak links. The opponcnr is lcft out from the exchangc of not yet presentablc prc-prod-
rrcts; first ideas, gossip, blu€prints and iectics
Coyrscs ol Mobilis4iio, S5

Social C'areers: The'becoming' has a social career in terms of its rise

(and. perhaps fall) and its growlng
1or shrinking) weight and impacr.
Applying rhis insight, rhe researcher can identify several stages of
acknowledgement and siatus attribution: from when it was just an
item of gossip, to a hopeful line of enquiry, up to a vital componenr
ot ihe case in court. Most careers, however, are brief: statements stay
on the level of'just ideas', neither fixed nor disputed.
The transfonnations of statements: Throughout the course of
preparation, the ways in which statemenrs are delivered change.
Statements are not iust written and spoken, but whispered, drafted
and read out. These shifts keep staremenrs flexible and adjustable to
local purposes. They also trigg€r the .returns and turns'25 of voices
together with risks of incoherence. Staremerrrs are contingent in thar
it is hard to account for all their future applicarions. Representational
projccts are under threat especially by ,impulsive' statements, which
explains why lawycrs insist on drafring statements before thcy turn
into public speech.
Tbe unsaid: At the end of rarher successful careers, the analyst
mighr become aware of statements that were on the one hand careful-
ly chosen to represenr the casc in court, but on the other hand did not
make it to the witness box. This might call for some erhnographic
interviewing abour the concrete circumstances, and those who took
the decision not to use this .ready' piece of evidence in court.
Micro-functionalism: Each entry can be re-specified as solution for
certain problems that occur during mobilisation. A completed log,
read in this wa6 implies inventive queries for related prolects of
mobilisation. Does the problem that is worked on during mobilisation
A occur in mobilisation B? lf so, how is it solved (differently) in both

The analysis of courses of mobilisarion provides some porentials for a cross-

comparative perspective. Crucial here is the hypothesis generaring inven-
tiveness oI the researcher. Beyond case-relatcd story-tclling, there is ihe need
to create analytical devices that open up the micro-persp€ctive, The data
logs suggested above are iust a starting point on the way to formalisation
and generalisation.26 It remains the most challenging taik to change from
the single-case perspective to a cross-c"r. or even crors-cultural perspective.

)' De Cerreau, 1984, above, n 8. at 156

t" See as well the,t...-ai"i.irlr""i-"ps invented by time-geographers and discussed in
Giddens' rheory o{ structuration.
86 l borrr:rs Scbefier

Thcse methodical instructions are, utrfortunately, not rvithout problcms'

They were developed for an English cotrtext-and bas 'd, therefore, on rlre
body of data proirced by this particular legal discourse lt is already clear
that'documenicd case-work vaiies consideiably according to tlte level o[
court-systems (in this case, there were big differences between files.for cases
heard in the Magistrates'and Crown Courts). It also seems unlikely that
another court-sy;enr rvitl provide the same kind of inscriptions and [iles'
This appears, fiom a cornpararive point of view, highly prcblernatic' A
,trdy thut looks at another-legal setting will have to develop its own data-
sheets and ways of completing thenr. There is no such thing as a standard
method for all legal Proceedings.
Mobilisation ief.is to an inscription aPParatus that produces specifi-
cally formarred statements, such a; the records in a case-file' lr is rvorth
asking why the English defence file provided such a'rich resource'for the
pr.pos. .rf tracing mobilisation. Horv did the rescarcher's Purpose rneel
*ith th. la*yets' determination ro organise, order' dr)cumen[, and report
her/his ongolng case-work? Are there' to modify Garfinkel's studl'-of
...otd-t..[lngln hospitals, any'good reasons for good legal records')!1
A few obseruaiions can be made aboul defence files in Crown CourI cases:
Aceounting: In the defence file, the solicitor in charge of the case
e.ploys ,- standardised system of book-keeping to -ensure the
accounting of the law firm's expenses and the granring and ca-lculation
of legal aid. According to this system, solicitors are asked ro document
all cisework that takis longer than six minutes. These units-of rele-
phoning, reading and writing leners, perusing the file and drafting
,t"t.-.n.r---rr. iecorded and later quantified for billing purposes' For
this reason, one finds also work documented that does not lead any-
where: such as investigating oflhand rumours or dirty gossip, or mak-
ing careless presumptions in an early assessment.
Tiie-manageme ; The lawyer in charge uses the file to reconstruct
uthat is doie so far and what needs to be done in the near future'
Work that needs to be done is prompted by solicitors' diary notes,
printed out and delivered every morning by the secretary' (The solici-
tor relies on these probably more than on his or her own memor,v')
The file's order anJ transParency are supposed to guarantee that the
lawyer meets the many expectations' deadlines and duties that go
along with defending a Crown Court case.

" H Carfinkel, ''Good" Organisational Reasons for "Bad" Clinic Records'in H Carfinkel,
lcdl. Studies tu ithnontethodilogy lEnglewood-Clif{s, NJ, Prentice"Hall, 1957) 186'
Coursts tti. Mttltilisttkn 87

Acaurulation: lhe fiie is rhe object arrd source of casework. Ir

secures, orgatrises and pays out earlier investmenrs. Day-to-day case-
work is principally about'keeping the file in order'and'doing what
the file asks for (or requires)'. Before the trial, defence work largely
takes place as interaction tretween the file and solicitor indicating the
further transactions to be taken (with the client, witnesses, barrister
and CPS). From this, strings of correspondence comc together in the
solicitort office, the ensemble's centre of collaboration. They build up
the case\ archive guiding thc uext decisions to take.
Division of labour: Crown Court cases are handed ovcr by the solic-
itor to a barrister, hired and instructed by the law firm to represent the
defence in court. The barrister receives the main information for court
through the 'brief to Counsel'. The division of labour (between solici-
tor and barrister) creares more transparency of the case related tactics,
inquiries and decisions. The legal file is, in many ways, a semi-public
obiect, very different from the ethnographerl field-notes. It is assem-
bled and kepr for a whole team conducting the case-work and account-
ing for it.
Will to corflpleteness: 'lncompletcness' was a usual complaint or
problem made about files, although they seemed to me-when com-
pared to my own notes and narratives-amazingly comprehensive.
However, solicitors are never fully sarisfied. They complain:'Where is
the response to our letter?','Why is the statement still not signedl',
'When do I need to finish this brief?' Files are constantly accused of
being 'incomplete' and therefore'bad', which stimulales further work
on the case.
The specificities of the data base raise a more general (merhodological as
well as political) problem that has been described b1'Star and Strauss as
'hidden work'.2t There is a lot of'private'work done by clients, wirnesses
or their peers that, due to the files' system of accountabilitS never finds its
way into the legal records. The researcher may find glimpses of this hid-
den work in the all-too apparent tensions, concerns and fears raised dur-
ing a legal case, and in the 'emotional'work of taking risks, overcoming
worries, staying cool or restraining rage and anger. From the files, one can
only imagine what it means for the client to get involved in the legal
Clusters and tension: Shortly before trials, one can witness the rising
tension even amongst the professionals: a tighter schedule, an increasing
assiduousness, an escalating busyness, a higher rate of correspondence,
meetings and telephone consultations. become breathless before

ri S Star and A Strauss, 'l:yers of Silence, Arenas of Voice The Ecology of \lsible and
Invisiblc Work' in (19991 8 Conlputet Supported Cooperatiue Work.
88 'f itonns Sche/[er

the 'day of reckoning'. My own lists to fill in rhe circulation of messirges

show clusrers lrfore and during the days in courr. The sarne'clusrering'of
activities and tension might be true for defendants. They are unable ro sleep
the night before, because oI the hard work of recalling their testimony. Thcy
have been told by their lawyers:'Make sure you remember all of it! Do not
confuse the dates!' ln this way, thc client is increasingly captured bv the
details of his or her own case.2e
Performances in court are, irence, not lust in danger o(, in legal and tech-
nical terms. being badly prepared, but of being thwarted by, so to speak, the
'human factor'. ln these ways, mobilisarion hinges on paraially unknown,
mysterious qualities of allies, lying beyond the realm of the documented file.
The achievements depend on aspects that are forcefully kept out, excluded,
denied or reiected. In this way, legal work relies on 'hidden' dependencies
and alliances, which can sometimes become'weak links'of mobilisation,
and undermine a carefully prepared case.

Tracirg mobilisatior is by no mcans a new approach in social science or
discourse analysis. Many of the ideas presented here stem from rhe empiri-
cal work done in interacrionist ethnograph),, ethnomethodology and Actor
Network Theory. Here, I would like to finish with some observations on the
significance of this research methodology for socio-legal studies. How can
it profit from this persp€ctive?
The proposed research design, first of all, implies a critical reflection on
socio-legal studies and its dominant rescarch foci. How is it that either talk
or text, either the drama in court or the rules of the books occupied socio-
legal attention?ro Does one, in the text-book marrner, need to declare the
primacy of either oral or written language in legal discourse? The analysis
of mobilisation allows one to transcend these debates.
Despite the affinities with workplace studies, ethnomethodology, and
Actor Network Theory the analysis of mobilisation is not identical to these
fields of research. Tracing mobilisation does not directly aim ro Brasp the
social organisation of the law firm, the solicitor's workplace, or the legal

2' This rescmbles Lr:hmann\

obscrvalions on the incrcasing cntanglement of the accused in
thc legal proccdurc and thc rulcs that go with it. He or shc buys, onJmight say, inro rhe game
and builds up a spccific procedural history {ullofsclf-made dccisions, victories and losses for
which shey'hc will bc held to account. Sce N Luhmann, Legitination durch Ve{ahten
(Ftankfurt aM, Suhrkamr,, 1989).
'' Sec J Conley and Yr O'Barr, Jtst Wotls. Law Lrtngrage ani! Powet (Chica8o, lL,
Univcrsity of Chicago Press, I998). For the active role of texts in a legal serting sce M Lynch
and D Bogcn, The Spectacle of Hbtory-Spcech, Text, ard Me,noty at the ltun-Co tra
Hearirgs (Durham, NC, Duke University Press, 1996).
()rrrsts oi ,\lol,ilisarirn 89
_:'.lril(tls. It,
ntrrrc()\'er, foctrscs ncitlrer solcly,on ltrrl cvents, n()r ()n lhr
,:rtLltiottal ralk. Ilur whar rlren d11es ir offei? As I trndcrsrancl ir,
l'rlisltiorr nt.rkes rccessiblc represeutJrional projcers irr rheir sruio-rrr.rtc,-
. I ct,trrse.Thc'c()trrse includes various sites and layers of social pr:rxis suclr
:: accuttrulative file-work, extended correspon,J.n.-.,.r, relariveiy self-driv-
:: e!ettts. This nrulri-siredness directs rhe formarion of legal disc-otrrse, anrl
'-.e invol.r,enrenr o[ subjects and
As a
.micro-sociologist, I was firstly interested in how courr hearirrgs are
::eracrivtly accorrrplished. This ethnornerhodological querv,rp.rid rp
::gu1ar' legll pracncc as contingenr craftwork. h, iurthermore, up.n.d up
':: lorrnarion of lpublic) legal discourses iu rinre: courr heaiings are
:--hitved due to a.temporal and personal division of labour; they
are pre-
:,'nligured bur only prrrially predicrahle. One can go even furrher, sraring
::rJt tnals resr on rhe sirnulraneirl, of lssorted remporatiries and
;:.rbiliries/flexibilities: from CA's turn-taking-machin..y,, r,, th" pre_estab-
r:hed narrarives, to rhe accumularive files, io the courtt manuais
and the
:rv codcs. The analysis of nrobilisation tcaches atrour conditions of partic_
:.rtion and involvernerrt, and hor.r,voices are tunctl on rhe wav.
The remporal sensiriviry of the proposed research design *ill contribute
:r a berter undersranding of rhe p;acrical relation of pic-trial and rrial,
:reprrarion and performanccl in ciifferent jurisdictilns. Mobilisation
,nfrrrms srxio-legal srudies abour the diverse statuses of
and lou,er or higher courts within projecrs of represen rir rion.
L sed in rhis way, rhe analysis o[ mobilisarion
provides useful frames, dar;r
and analytical tools for grounded socio-legal cLmparis,rn.

during the hearing. Forexample, the barrisrcr takes nores rhar hclp
rn prcparrng rhe up(onrrng eross-examination or closing speech.

'Standpoint','Difference' and
Feminist Research

Bnildirg ntore itchsiue.ways o{ *eitg rcqd,es scholars to tahe mrhiple

iews of their subjects. abandotirg the idea that there is o singtlar leality that
social scietce can discouer.
(Margarct L. Andersen !993r43)r

Wbile a fair amornt has row beeu published aboxt relatio

ships in tlre acru-
al ir enrieu, siltatiotr, much less has beer wrirren abon rcsearcher negotia-
ti,otr tuith pe.op.le tbot thel u,aur rc be fu a study atd about hotu participatts
themselues leal aborl baing inuolued ir partia ar pieces o{ research.
(Ann Phocnix 1994:50)r

F;-rle n.e ts A growing feminist literature which seeks to understand the

relationship berwecn the experierces of women as complex, multiple
I-I anri dynamic and which can only be under"tood in interaciion with
other identities and social srrucures. ihis intcllectual strategy in feminist
social research derives from the .standpoint' of women ,na"ra.t ,o p.o_
duce a 'feminist' subjectiviry. With regard to undersranding ,t. .o*pt.*
Irved expenences of women, standpoint theory draws upon feminist
tiques of power to highlight the diffirential pos-ition *o-en occupy within
social, familial and legal life. More recentlg ioweuer, standpoint tleory
been criticized by black feminisrs, who argue that such
llbued wirtr simplified and unqualified ,,iderstanding, oicrlture,
rdentrty and community and hence subsequently fail to adequately

I ML. Andcrscn, 'studying

Across DifGrencc Racc, Class aod Gendcr in
inJH Stanficld and RM Dcnnis, lcdsl, nacc aia
atiiiii"'-n"r"i.i unna,
(Ncwbury Park, CA, Sagc, 1993) 127-38.

A Pfioenix, 'Practising fcminisr Rcscarch: The Intersection of Gender and
rn.)\4 Maynard. and J_purvis,.(cds), .Wonen "Racc" in the
t?nu,ust t-r.T*:. leyltcbixg
erspe.tiue lLondon. Taylor & Francis,1994!. 49-72.
s Liues lrom a
92 Samia Buut

rvirh the nrultiple positioils wonlcr occtrpl in relation t() rilrc, ethr)icity,
class, family and connruniry. Indeed, ir is rhis conrplex re:rli11' th:rt leads
black fenrinists ro drau' upon the categories of 'difference' rnd'translocr-
tional posirionality', wirh the inrersectiol of race, gender attcl class su[ror-
dination to gain a more fuller undcrstanCing or) the specificities of bhck
women's lives.
Thrs chapter draws upon these debrtes tc. explore the rnerhodological
dilemrnas faced toy the socio-legal researcher while collecting fieldu'ork data
in the area of'religious personal law' in Brirain.r ln doing so, ir explores the
meahodological dilemmas in accessing, collecting and analysing data in an
area of study that is confined to the 'private' sphere, is traditionally defined
as non-legal and remains largely under-researched. Mor€over, it quesrions
whether these issues raise a speci(ic set of ethical and rnethodological
challenges for the feminist socio-legal researcher. Seeking ro explore the
ontological and epistemological tensions presented by [enrinist standpoint
theory with cultural difference, it addresses the need to develop a multifac-
eted approach to conducting feminist social research rhat recognises conr-
plexity, difference and divcrsity within its analyses.
The chapter addresses three rnain issues. The first draws upon observa-
tional research to explore issues of'access', 'consent' and 'di:closure' in
undertaking empirical research with Shariah Councils irr Brirain. In doing
so, it questions whethrr traditional research methods need to be used in spe-
cific ways *,hen faced with a particular set of merhodological issues.4 This
issue also relates to questions surrounding the centrality of privacy, the rela-
tionship between puhlic and private'space'and the situation where the
researchcr has little control over the research process.J The second issue
draws upon debates on 'reflexivity' and the'self'to analyse the role of the
feminist researcher in conducting in-depth qualitative interviews. Here r'.'e
draw upon debates on identity and cultural difference to consider how'dif-
ferences' may affect the research process and to question whether sharing a
gender, ethnic or religious commonality with the interviewee leads to any
difficulties and/or advantages.6 It draws upon the concept of'positioning(s)'
to consider the limitations of categories such as 'insider/outsider' that fail to

r Pcrsonal hws are defincd as 'customs' which, likc English conrrnon laq arc allowcd as
long as they do not conflict with English statutory law. Thus Muslims can gct married in an
lslamic way as long as thc mar'riage is rcgisrered with thc statc. For an overview scc SM
Pouke\ Eth iciry, Law and Hnnan RADts, (Ox(ord, Clarendorr Prcss, 1998).
' For an intercsting discussion on thc problems of conducting ficldwork on scnsirive ropics
see MR lre, Doizg Research ox Sensitiuc Topr'cs (London, Sage, 1999).
' Vhat has bcen decmed the 'politics and ethics'of social rescarch. Sce P Atkinson and D
Silvcrman, 'Kundeta! lmmortality: The Interview Society and thc Invention ofrhe Self' {1997)
3 Qualitatiue hquiry 304-25.
6 In particulat ir draws on rhc work o{ M Song and D Parker, 'Comnronalitn Dilfercnce and
rhe Dynamics of Disclosurc in lnJepth lntcrviewing' (1998) 6 QualitatiL'e Research ll)-16.
I:tnrirtrst Rcsearcb 93

:rrrrlre not onlv rhe cr>rnplex and varied experiences wirhin the v.rrrous
:-oups under srudl'hur also obscures the rictrness and diversc experiences
:rr\\'een fhe researcher and the researched.
' The final part of the chapter addresses rhe issue of the researcher 'leav-
rt the field' and explores ways of nanaging the personal relarionships
:rrr,.red with one's informanrs,T If we take rh€ view rhat the decision of rhe
nformants to participare in rhe research project may be conditional rhen we
rtust also consider the implications that this may have upon the intcrpreta-
: rcn and presentation of data. In this way, quesrions can he raised atro,rt rhe

'ntcrprctive process, and the chapter concludes by briefly considering the

social and political implications of writing up research deemcd 'politically


\1uslim fanrily law, like other South Asian religious and cusromary corpus-
:s of larv defines the posirion of women in relation ro marriage, divorce,
child custody, dowry and inhcrirance.r It is often referred to as personal lau,
as therc have been some voices within the Muslim community in the UK
de manding that a 'personal regime cf law' be adopted for the Muslim com-
munity as a whole within the area of family lau,.q In the case of Islam,
\luslim Family La.,v is subject to interpretation by differenr religious lead-
ers and cornmunities as there is no one comprehensive lslamic legal systenr
but varieties exist according to ethnic or religious backgrounds.r0 There are
rwo main groups o[ Muslims in Britain, Sunni and Shi'a Muslims, and the
practice of Islam within these groups varies in accordance with the differ-
ent Shariah schools of thought. There are also many class and sectarian
divisions, operaring according to different Islamic codes of laws; [or exam-
ple, Ismaili Muslims are part of the wider Shi'a group but practice distincr
laws applicable only ro them. It is, therefore, difficult to speak of .Muslim
family law'in Britain when it varies so widely according ro ethnic and sec-
rarian affiliation.

' Sc. SJ Taylor, '[.aving rhe Ficld: Rcsearch, Rclationships and Responsibilitics' in D
Slivcrman, (cd[ Quatitatiui Research, Theory, ilethod and i,actice lLoldon, Sag., 1998)
For an ovcrvicw scc S Ali, Gender and Hmtan Rigbts in lshnt and ltternational Law:
fuual belore Allah? Eqral belore Man? \Loodon, Kluwer Law Intemational, 2000).
'Thisdemand was first made by a group of religious scholars in Birmingham 1977 to
Homc Office ministcrs and was re;ected. For an interesting disctrssion on the nature o{ these
dcma:rds see JS Nirlsen, 'Energing Claims of Muslim Populaticns in Maners of Family Law
in Europe' (1992) 13 Reseatch Papers: Mtqlims i,, Enrope.
.ly in"'For cxample. thc Irlamic personal laws which cxist in the Indian subcontinenr vary grear-
comprrison with rhose which exist in lrrn or lraq.
94 Santta I)atto

lJxisting Iiterature prescills rhe socio,legai realiry oI Muslinrs in Brirain

as ir conrplex scen:rrio ll lreretr)' official and custonlary lar+,s irrreract to pro-
dtrce l nerv set of hybrid larvs.r' In atternpring to develop a conceprual
framework, which b<-r.t adoprs a 'postmodern approach' ro the study oI
law and recognises pluralism and diversity in social life, Menski employs
the analytical framework by the lurist Masaji Chibar2 and constructs a legal
model that he defines as 'Angrezi Sharia'. According to Menski, Asiarr
Muslims in Britain havc nor simply given up Islamic law but combine
lslamic law and English law to form'Angrezi Sharia'. As part of this corn-
plex process, redefineJ Muslim laws in Britain have become 'hybrid' and
thus 'all ethnic minorities in Britain marry twice, divorce twice and do
many other things several times in order to satisfy the demands o{ concur-
rent legal sysrems'.rr This complex socio-legal reality of Muslims in Brirain
also raises [undamenral questions of wherher, in a multicultural and hetero-
geneous sociery, therc must be a commirment to cultural diversiry and plu-
ralism in the area of family life, just as in other areas, and wherher the stare
should uphold and support a diversity of family arrangemenrs. This raises
a number of important conceptual and theoretical questions regarding the
relation between individual aod groups rights, how these are distinguished
and how clashes lretween individtral and group rights may be reconciled.
EmbeCded in thesc is the key question of what makes a community a com,
munity o[ righrs? Docs rhe iraie, in granring individuals the right io enjoy
their culture, have an obligation to foster that culrure and ensure irs sur-
vival? These issues also raise questions on what we mean by the term .com-
munity'. Communities nest within one another: local, narional, and global.
They also intersect: British Muslims belong to the glob al Muslim umma, for
example. Some individuals may regard the recognition of a cultural/reli-
gious practice as a 'right' and hy other members of the same communiry as
a nreans of oppression. A particular cause for concern for liberal feminisr
theorists has been whether the practice of personal laws within the familial
context leads to the unequal treatment of women within these communities.
This area o[ work has been couched within the context of tensions between
multiculturalisrr and feminism-r4

r'There is emerging literaturc in this area. Sec D Pcarl and W Menski, Muslin Famity Law
(London, Swect & Maxwcll, 1998 ); SM Poulre\ Ethnicity, lauj and Hwtun Riehts, l1xford,
_Press, 1998)i I Yilmaz"'Muslim Law in Britain; Reflcctions in th-e Socio,trgai
Spher_e and Differential l,egal Treatmenr' l2}Oll 20
loffnaf ctf Mrctnn Mircrity Affirs
ll.Scc Pearl and Mcnski,
1998, n 11; and M Chiba, Asidn lndilenous l,aw it btteractton
ut.h Rercrued Law lLondon, Kegan Paul International, 1986).

See above, n I t. at 7J.
Moller Okin argues, such tensions becomc cspecially clear when we consider a conrrover-
sial proposal endorsed by some mtrlticulturalists: to provide cultural minorities with .group
rights'as a way to preserve those minoriries from undue pressure on their wavs of Iife. See SM
Okin, fs Muhiculturalisnt Bad for Womenl lPrinceron, NJ, Princeron Uni,crsity press, 1999).
'Sti.adpor;tt', Di[fcrrnct,',n,1 Frrrrrrrrst Rc-rco,c/r

It is within this c()nrexI of liberal nrulricultur:llisnl rhar rr,,e have seerr rlrc
ettteryence lttd dcvclopmssll of unofficial
non-srarurory bodies idenrified as
Shariah Ct-rurrcils in Britarn. Framed
as sires upon which tanrily law nratrers
are resolved according to Muslim family law, rhey have developed
works rhar are characterized try specific cultural and religious
nornrs arrd
values. lhrs nrotrilisarion of communities challenges rhe hegenronic
of stare law and unsettles the multiculturat p..,;.."t in it,
to recon-
figure socialand legal discourse in marters of family law ",i.*p, Most intercsrrng-
ly, for thr: soL'io.legal scholar, rhis process opens rpih".,,na.p,url ,p".a,,.,
wnlcn to see rn evtdence the nrulriple legal and social realities in operation,
within rhe larger context o[ stare law,-liberal multiculruralisrr, ,igh,.
discourse. "nd


'fhe central nrerhodological
quesrions for this study relate ro formularing
sals to ot>serve hos,Shariah Councils operare in practice, and to encour_
age British Pakistani Muslim women ro speak about their experiences
using Shariah Councils to obrain a Musiim divorce. The
first method,
which comprised observarion oI Shariah Council .proceedings;,
*a, .hos.n
for a numtrer of reasons. As discussed earlier. exiiting ..r."'r.i
rhe developmenr o[ Shariah Councils in Britain as ."ii.n..
ni ,n .*.rg,ng
parallel legal sysrem. Thus rhe socio-legal reality of Vuslirn,
in Brirain is
presented as a complex scenario whereby official and
cusromary laws inrer_
act ro produce a new set of hybrid laws.rt The presenr
srudy atremprs ro
problenrarize rhis approach by examining the gcndered
naturi of the infor-
mal legal sphere(s). In doing so, ir deconstructs the hinary opoositions
'srate law'.and 'cusromary law' of
and seeks instead ro explore ihe conresred
'space(s)'that Shariah Council's occupy as an empirical reality
rarher thrn
a theorerical construcr. Observational research included obr'.*;ng
selling and mediation sessions, interviews with Shariah
Council scholars
and observarion of'court' proceedings when a religious diro.f.-..rrific"t.
was issued.
The second method comprised in-depth qualitative inrerviews with
-I'akistani Muslim women. 25
The interviews sought to elicir the exoeriences ol
women using Shariah Councils to obtain a Muslim divorce. It
is the.voice,
of the women that rhe research seeks to bring ort hen.e a feminisr

'' See I Yilmaz, 'Law as Chameleon: The euestion of Incorporation of Muslim personal Law
into English L.a\!' (2OOtl 2t lo rntll o{ Muitin Mitority Alfr,, Zst_i6,i-- " ''
96 Sar'lia Batrt

approach to interviewing is adopted.'u In pa icular, it explores their mori-

vaiions for using the Shariah Counciis, drawing upon their experiences of
mrrriage and analysing strategies to obrain a religious divorce. ln doing so
it considers how women balance social expcctation based on cultural duties
with religious obligations and how gender frames the relations of power on
which negotiations may be based within the family and unofficial decision-
making bodies.'7


Shariah Councils operate as unofficial legal bodies specialising in providing

advice and assistance on Muslim family law matters. They are neither uni-
fied nor represent a singte school of thought brrt instead are made up o{ var-
ious diffeient bodies represcnting thc different schools of thought in
lslam.'s In essence, the Shariah Council has three rnain functions: mediation
and reconciliation; issuing Muslim divorce certificates; and producing
expert opinion reports on matters of Muslim familv law and custom to the
Muslim iommunity,re solicitors and courts. In addition to providing advice
and assistance on matters of Muslim law, Shariah Councils have also been
set up to prornote and preserve Islam within Brrtish society.2o The process
of dispute rcsolution, therefore, is produced through various discursive
practi;es. That is, Shariah Councils must be understood in relation to the
iocus of po*e. in which they are embcdded. SimilarlS the emergence of
Shariah Councils in Eritain can be traced to a diverse set of social process-
es. According to Yilmaz2t there are four conditions under which Shariah
Councils emerge in Britain. Firstly, under Muslim tradition, family issues

Qualitativc fcminist studics cxplorc womcn's ec"'ounts through in_dcpth inrcrvicwing'
opcn qucstions and qualitativc ana'lysis. $c for cxamplc S Rcinharz' Feminist Mclhods it
Sicial'Rcsearch {Oxf6rd, OUP, 199i1; L Stanlcy and S Lritc, B"aAi,,t O,.t ASain ([.ondon,
Routlcdgc, 1988).
For"e fascinating study on thc r.letioflship betwccn gcndcr rclations' Powcr' family and
lcgal rclations scc A-Gritfiths,ln thc Shadou, ol Maniage: Getder atd Justicc h an Alrican
Commtnity (Chicago, lL, Univeaity of Chicago Prcss, 1 997).
I Thc four ancicit lslamic schoois of Sunni thought can bc broadly catcgorizcd as Hanafi'
Maliki, Shafi'i and H:nabali. For en indcpth analysis on the histotical dcvclopmcnt of thcsc
schools scc Nl Coulson, A History of lslantk lar, (EiinbLrrgh' EUR 1964).
t' Shariah iouncils alio issue fatwis which can simply bc iranslatcd as a ruling from a rcli'
gious scholar to mcmbcrs of thc Muslim community ovcr a contcsted issuc. Obscrvation
iescarch rc..als that at some Shariah Councils thc scholars spend considerable timc delibcrat_
ing on whcthcr to issuc fatwas. The outcomes of these fatwas are not known but this ccnain'
ty-raiscs intercsting qucstions on how thc community- attempts to deal with local conflicts
within thc boundarlcj of the 'Muslim community' and the extent to which thcsc processcs may
conflict with state law.
r Bunt provides a fascinating account on thc lolc of unofficial dccision_maling bodics * ith-
in Pakistani Muslim communiiies in Birmingham. See G Bunt,'Dccision Making Concems in
British lslamic Environments' (1998) 19 lslam and Chtistian'Muslin Relations lO3-13,
!r See abovc, n 15.
anrl !:enuuist Rcseorch 9-7

:re purposivelv left to'cxtra judicial'regulariorr and diasporic corirrrruniries

.-onrintre this rradition and resolve dis-purcs wirhin rhis sphere. Seconclly,,
\lLrslinrs do not recognise the authority and legitinracy oa western sccular
i:u on par u,irh Muslim lau.and, rherefore, d.'iiter"t.ly choose ro resolve
Jrsputes through a non-adversarial pr,..rr.'fhirdly, the farnilial norions oI
hon<.rur and shame prevenr familiai dispures lrom being discussed in the
p,.rhlic sphere'and subsequently religious laws a.e giuen greater po(€ncy
r nd leSrtrmacy within rhe communities. And iinally, the failure of the statc
to recogrrize these plural legal orders has led to the development of these
'.:lternative'dispure resolution processes
within the private sphere. In short,
!\'hat we see in this analysis is the development o[ a parallel legal system in
opposition to srate law.


Conducting research on 'sensitive' issues raises a specific set of ethical and
rrerhodological challenges. Sieber and Stanley difine sensirive topics as
those srudies irr which rherc are,potential consequences or implications,
either directly for rhe parricipants in the research oi for the class of indiuid_
uals represenied by rhe research'.22 This can include topics that involve
taboos for the lcrcal community. for example sex o. dearh or topics which
mal be sensitive in relation to the socio-political corrtexr in which the
research is undertaken.ll
Research on Shariah Councils can br deemed .sensitive'for a number of
reasons. Firstly, issues of marriage and divorce embody notions of familial
honour.and shame and conscquently remain confined to the private spheres
of family.and home. The implications of discussing private matters through
rvhat is ultimately vieu,ed as a public forum can have dctrimental effects tor
the women and rheir families. In the observation of Shariah Councils, a
number o[ scholars voiced concern about the implications of discussing per-
sonal marrers of marriage and divorce .in publii'with a complete sranger.
It became apparent thar my presence wal deemed an .intrusive threaC by
some Shariah Councils since I was attempting to gain entry into areas
deemed 'private' by respondents, their families anJ the communities to
which they belonged. One religious scholar explained,
You must undersiand confidentiality is of utmost importance in our work. lt is
very difficulr for our people to discuss rhese issues anJ we spcnd a lor of time and
effort convincing them to seek our help. Divorce is shunned in our communrrres

Quored in f-cc I999, abovc, n 4, ar 49.
Quoted in Lee t999. above, n 10. Sec JD Brewer. .Scnsitiviry
-" as a prohlem in Field
Research: A Study of Routine Policing in Norrhero Irrland'{1990) i3,q,",erron Behauioural
\cicltist Si B-91
98 Saura Ban<t

and rightlr so. Ir should not bc given the air o{ rcspccabiliry but rhar tlocsn'r
mcan rve condcrnn those who wanr ro divorce. [)ivorcc is pernrittcrl in lslar;r and
we rvork with Muslims to achicve thc b,esr possible siruarion... !o allow some-
one'ihev don't know to sit through our scssions would mcan they would losc our
trusr and confidenrialiry.

A further issue concerned the rise of Islamaphobia and the perception o[

'risk' associated with collaborating wirh the research proiect.2{ Again dis-
cussions with religious scholars revealed concern abour the possibility of
such research contributing to rhc demonisation of .lvluslims and whar one
scholar described as'the growing climate of fear and discrimination againsr
Muslims'. One Muslim female worker at a Shariah Council voiced conccrn
about th€ possibility of the research contributing ro existing srereotypes of
Muslim women as passive victims of archaic religious traditions.
It's quitc understandable why Muslim womcn don't want to contriburc to
research projects becausc mostly we'rc presenicd as somc kind of alien specics,
especially if we choose to practisc our faith. For example discussion normally is
confined to why we would choosc ro wear thc hiiab .,. well if we,rc iUuslims wh),
shouldn't we? And also you musr renrember that its not that many o[ us arc
reluctant to discuss issues such as marriage and divorce in a putrlic space but ir's
the lack o{ tolerance, and undcrstan<!ing in rhis space thar makcs u, rclucranr to

There were also concerns from religious scholars on the presentation of

data. One scholar informed me, 'wJ discussed yor, ..qr.ri at our weekly
meeting and a number of us are concerned about what will happen ro the
material once you've completed your proiect.'
When access to observarional research was permitted it was made clear
that it was on the basis that as a Muslim researcher I was expected ro pres-
€nt that daia in a fair and accurare way. What then can bc iaid aboui the
ethics o{ conducting research under such conditions? perhaps not surpris-
ingly, this link between private experiences and public discourses on
Islamaphobia raises questions ,.g".jing the theorerical framework upon
which the research is undertaken. Foi example, Lee suggests that the
researcher must provide a 'framervork of trust' based upon ionfidentiality
altd a non-condemnatory attirude that in turn allows ihem to encourate
those under srudy to confront issues that may be perceived as.personally
threatening and potentially painful'.r, Mo.eouer, *. must reminj ourselvei

n Thc emergcnce of a ncw form

of cultural racism directed at Muslims has bcen identified
as lslamaphobia. ln 1997 The Runnymede Trust in their rcport on Islamaphobia cited thc
stcrcotyprcal assumprions on the position oI wonren within lslam. arranscd marriaees and the
defining of Muslims and Mqslim iea<iecs as inhcrently .fanatical' as examoles of thii new form
of racism. See Runnym cde Trust. lslamaphobia: A ChallenSe fot us Af, iiondon, iunny..d.
Trust, 19971.
r Lee, 1999. above, n 4, at 98.
'Standooint','Drfferencr,' a,r! l:,:rtrittisl Resedrtb 99

:rtr'scnsirive' research can only be understood as'sensirive' according to

lhe conrexr and conditions under which it is siruared. In rhis way, the neces-
sity presents itself for all researchers to address their own religious, nl()rrl
and political beliefs.
In rhis srudy, gaining access to some Shariah Counciis for observation
rcsearch proved difficulr, lengthy and problemaric. lt is well documented
that the aim of observation fieldwork is to provide a rich insight into the
organisation under study. Yet this process can be limited when access to pri-
rate organisations is controlled and in somc cases blmked by its'gatekeep-
ers'.26 Some writers point oui that the 'acccss processes'need to bc more
(ully explored. For example, Lee complains that 'neither has much attention
been paid to patterns o[ acccss and non-access across studies, or to the
potential consequences of differential accessibility to some settinBs rather
rhan others'.27 tn this stud6 the absence o[ direct measures-a result of
restricted access to Shariah Councils-meant that comparisons beaween the
bodies could not be sufficiently drawn.
This raises the question of the ways in which gatekeepers may exercise
rheir power to curtail or prevent access. Form23 points out this unequal
relarionship leads to the rcsearchcr'bargaining in the access situation'. He
identifies this as the 'politics of distrust' that can only be overcome if there
is trust between the garekeeper and researcher, even though there may t.le
differences of opinion. tn Morritl, et a\,2" the researchers found that iden-
rifying gatekeepers acrs as a useful analytic device for learning about the
vocabularies of structure in an organization, and that successfully manag-
ing gatekeepers requires that one understands the vocabularies of structure
in use in an organization. For other scholars, the issue of 'mistrust' can
only be overcome if the boundaries of the research relationship are clearly
demarcated prior to the start of field$'ork. For example, Lofland and
Loflandr0 devise a series of questions which the researcher must address
before the research begins. These include, 'am I reasonably able to get
along with these people? Do I truly like a reasonable number of them, even
though I disagree with their view of the world? tWhy did I pursue research
when it became obvious that it was going to be difficult to maintain in the
long run?'These questions provide a useful criterion to explore the issue
of ethics in fieldwork research but we must also remain aware of a new and
different set of ethical questions arising during the course of the fieldwork.

" S€e M Punch, Ire Politics a d Erhics ol Fiely'rzor& (London, Sage, 1986).
[-ce, 1999, abovc, n 4, at 121.
rr See K Form, Approdche, to Socidl Elquiry (Cambridge, Polity Press, 1983).
']e Sec C Morrill, 'Towards an Organizatiooal Pcrspective on ldentifying and Managing
Formal Gatekeepcrs' ( 1999122 Q dlitatiue Sociology 5l-72,
'n J Loflrna and Llnfland, Analyzing Social Settitlgs lBelmont, CA,
rJuadsworth , 1994) 94.
700 Sanw Ba*t

ln this study, otrservatiotral research revealed a number oI women report-

ing incidences of donrestic violence. At one Shariah Council, the u'omen
who did request professional help were given little guidance as to the avail-
able services. Paradoxically nty previous work had been in the area of
domestic violence and hence I was in a position to advise them. Yet I was
acutely aware that access to this Particular Shariah Council had been grant-
ed on ihe basis that there woutd hc no direct contact by me with any of the
women using its services. [n this instance, I decided to approach thc reli-
gious scholar o(lering a list of relevant agencies (or the women to contact.
I was politely informed that my advice was not required.]r This example
illustratcs the ethical issues concerning responsibiliry towards the rcspon-
dents. For Mason, the researchcr has a'moral duty'to overcome Potential
difficulties that can be achieved if the researcher is aware of which groups
or intlividuats may be affected by framing the research in a pardcular way'rz
The issue of trust is, therefore, central to gaining both consent and access
into private organisations. Hammcrsley and Atkinson! explain,
whether or not people havc knowledgc of social rcscarch, thcy arc ofien more
concerncd with what kind of a person the rcscarcher is than with the rescarch
itsclf. They will try and gatrge how far he or she can bc trusted, what he or she
might be able to offer as an acquainlance or a friend, and pcrhaps also how eas'
ily he or she could bc manipulated or exploited.
One of the interesting aspects of observational fieldwork is the exploration
of the role of the researcher in the field' Coffey describes 'the marginality
and presence' of the researcher as critical to exploring,'how identities are
consiructed, reproduced, established, mediated, changed or challenged over
the fieldwork process'.rt The identity of the researcher raises questions on
how the researcher may affect the outcome of observational research.
ln this study,, the ways in which the d1'namics of gendei, race, culture,
class and religious identity interacted with the social setting under study
was an important focal point of analysis. For example, did my gender affect
the behaviour of the subjects (religious scholars and users) during observa-
tional research? In her research with Kenyan informants, Oboler found that
being pregnant increased her rapport with the informants.3r Yet the process

'r ln thc study only onc Shariah Couocil adopted this approach whercas thc othcr 3 Shariah
Councils in(ormcd me that they contactcd local Muslim womcn! organisations when con_
frontrd with thc issue of domestic violcncc.
tt I Mason, Qualitatiuc Rcsearching lLondon Sasc. 1996) 30
tt M Hammcislcy and P Arkinson, Ethnography: Principles in Praaice (London, Tavistock,
rt Scc A Coffcy, The Ethnographic Sclf: Fieldwo& dnd the Representdtion of ldentity
(London, Sagc, 1999) 22.
" See RS Obolcr. 'For B€tter ot Worse Anthropologists and Husbands in thc Ficld' in TL
Whitehead and ME Conway, (eds)' Sef, Ser and Cetder in Crcss-Cubural Fieldaork lUrbana,
IL, University of Illinois Prcss, 1986) 28-51.
'Slondlxtittt', 'Diilcrenct und Femntist Rescarch lOl

o{'idenrirl'construoion'is complex and ar most rintes subrle. Prior t.r field-

work, vcry lirtlc thoughr had been given ro how I should negotiate lny pres-
ence. k had lreen assumed that my religious and cultural background es a
Pakistani Muslim wotnan would grant easier access to Shariah Councils.
My assrtmptions proved to be both real and misleadiog. Over rhe course of
the fieldwork, it became apparent that sonre scholxrs were happy for me to
observe mediation sessiorrs as they believcd rhat Muslim women would be
sympathetic ro a Muslim woman conducting such research. And iu some
instances this was clearly the case. For example, on two occasions female
clients requested that I sit next to them for support. On othcr (xcasions,
however, I was asked to leave the sessions when the client was visibly
uncomfortable in revealing private matters in the presence of a stranger.
The'self in thc field, therefore raises complex issues.
In this study access, ahough limrted, was granted on the basis of privacy,
rrust and confidentiality and only with the infornred c()nsent of clients. For
example, prior to each mediation session the client was informed o[ my
presence and, if any objections were raised, I was refused permission.
Finally, it was agreed that all feedtrack of the study and copies of interview
rranscripts would be made available to rhc Shariah Councils.


Feminist ethnographic research emphasises notions of 'reflexivity' and'sit-

uated knowledge (s)' where the relaeionship between the respondent and rhe
interviewer is acknowledged and recognised and thus becomes parr o[ the
data and not external to it.l5 It contests the traditional constructions of
'knowledge' and 'society' defined within 3 s(ructuralist paradigm and
underlined by patriarchal norms and values. The feminrst approach empha-
sizes the personal and subiective experiences of the researched subiect, that
can produce invaluable data, Here the researchers are encouraged to place
themselves in the position of the researched in order to understand the
dynamics o[ the relationship between the rwo and locate all research with-
in a historical and contextual setting. Using her research on'morherhood',
OakleyrT argues that a feminist subiective approach to interviewing is cen-
tral to establishing a 'rapport'with female respondents, gaining rheir rrusr

f' See for cxample 5 Harding, (ed), Ferrnrisn and Methodology

lRloomington, lN, lndiana
University Prcss, 1987). Such issucs are central to thc rcsearch. k allows thc researcher to
structure an interview schcdule io such a way that thc researcher is in a position to ask prob-
ing qucstions which may clici fuller answcrs. Thc respondent may also feel that thcy are in a
position to rhink about thcir rcsponses and they are given the timc and the space to do so. They
may answcr a question, rnove on and later decidc thcy want to return to that panicular ques-
tion and they are able to do so.
'' Se€ A Oakley,'G€nder, Methodology and People! Ways of Knowing; Sonre Problcms with
Feminism and the Paradigm Debate in Social Science' ll9981 32 Sociology 707-31.
102 Snuit Bano

and rlrus enhancing rheir rvillirrgness to rakc part in rhe research. Reinharzrs
Purs [or{,ard a participatory nrodel of reseaich that airns to produce non-
hierarchical, non-authoritarian and non-manipulative research retation-
ships..This approach has led to the de"elopment of .standpoint theorics,
whereby the focus of the research is on the expericnces o[ women from the
Perspective of women themselves. Such research is located within a histor-
ical and political context, which gives it thc space for potential social and
political change in rhe lives of women. Given tire diversiry of this approach,
we a.re able to-cxplore the expcriences o[ pakisrani Muslim women using
Shariah Corrncils within a wider socio-political framework.
More recently black feminists have drawn on the concepts of.diffcrcnce'
and'translocational positionaliry' to inform a feminisr aiproach to social
re_search. Thc concept of diffcrence emerged in response t; the cssentialism
of much thinking on race and ethnicity. Hallr" celcirrares difference through
the construoion of new ethnic identities while irrterrogating traditional
understandings oI culture and ethnicity. For {eminists, thi notion of differ_
ence has been arriculared around rhe concept of.situated knowledgcs'and
'situatedness'a0 where female subjecriviry iniroduces alternative
Yet.this epistemological position of difference has been s,rbiect to exten_
sive critiquc. Anthias poinrs out that the dchates on diffcrence iave
the dynamics of gender and class inequaliries..r The fcrcus on difierence
between groups risks the perils of culrural relativism *,hich homogenisc cul-
tural difference in opposition ro otherness. lnstead, .l,nthias refirmulates
difference in rerms of imaginings around boundaries'and .hierarchical dif_
ference'.'! This reformulation o[ differencc re-evaluates the ways women
are situated within different and ofien conflicting categories o{ race, gender,
class and within the institutions of family, homi and"community. Itlecog-
nises the existing power relations within these spheres that give
rise to a
complex interplay of values. Therefore, the concept of diffe"rence in this
study is employed as a conceptual tool to challengeihe existing pattcrns
domination and exclusion wirhin social and legal processes.
In her work Anthias introduces rhe notion oi.translocational positional_
ity' which provides rhe porential to recognise the importance of context and
location in relation to shifting positions and identities: .A translocational
pos.itionaliry is or,c strucrured by the inrerplay of the different locations
therr (at times) contradictory effects. The -translocational. acts to fissure

'r Rcinharz t988, above, n t6.

.-" S. Hall, 'The Mnlti-Cnlrural
Question' in B Hcssc, (ed), t_)n/settled Muhicttturatisnts
Zcd Books. 20001
'o Sec above. n 16,
" F Anthias,'Beyond Fcminism and Multicukuralism: Locaring Ditfercnce and the politics
of Location' l2o}2l 2s wohret\ Stndrcs trternarionat For 2i;_8;. - - -' - - '
" Anrhias, 2002, above, n 41 ar 2?a. -
'Standpouit','Dif[crcrce and Leninist Rascotch l0]
rhe ccrtaitlties of [ixed singular locarions b1,consrructing poteotially contra-
dictory positionaliries.'al
On a practical level, this involves recognizing women may be in a posi-
tion of dominance or subordinarion at parricular times and contexts. In this
way, individuals are actively engaged in the process of culrural contestarion,
renewal and change.
This analysis is useful for
it reminds us that we need to draw upon rhe-
oretical approaches that recognise contradicrions and ambiguiries in
u,oment positions withiu families and communities. In this way, the bina-
ries of insider/outsider become destabilised where one may be an insid€r
and an outsider simultaneously in relation to different dimensions o[ power
and hierarchical difference. The purposefulness of this approach is recog-
nizing the complexiry and difference of women's lives bur also understand-
ing how their posirions within the family and communiry may be fragile
and potentially exploitative. This complemenrs the 'i ntersectiona I'
approach, developed by the writers Crenshaw" and Volpp'r who poinr out
rhat race, class, gender and other systemic oppressions work through rather
rhan alongside each orher.


There has becn nruch discussion over the issue of race matching in conduct-
ing interviews. The argument is rooted u'ithin'realist episremology', which
holds that there is some kind of'unitary truth' which interviewers should
obtain. It is believed thar a black researcher is more able to blend in with a
black interviewee and, therefore, ger an insight that may otherwisc not be
possible. Constructivisr theories differ from this perspective, arguing
instsad that all accounts from interviervs can only be understood in the con-
text of the interyiew and any information given cannot be taken to mean
rhe'truth'. This raises the quesrion of whether there are unique method-
ological obstacles in conducting research among minoriry communities. In
particular, questions have arisen in relation to the unequal power relation-
ship of a white researcher conducting research on non-white communities.
lt is argued that white scholars can only produce incomplete data as inter-
viewees view them with distrust, hostility and exclusion. This view has,
however, been challenged by a number of theorists.

Anthias, i6i4 at 278.

" See K Crcnshaw, 'Demarginalising rhe loterscction of Race and Scx: A Black Fcminist
Critiqtre of Antidiscriminrtion Docrrirc' in K Crcnshaw, Feninkt Thecry and A irdcist
Po/nirs {Chicago. IL. Universiry of Chicago Forum) 119.
'r See L Volpp. 'Talking 'Culture;: Gendcr, Race, Nation and the Politics of
\'lulticulturalism' (1996) 96 Colunbia Law Reuiea 1573-417.
104 Samia Bano

Among them is rhe [erninist u'riter Hill-Collinstu ..vho devel,rps rhe

notion o['outsiders u'ithin'where whire researchers are deemed capable of
conducting research on minority communities but in doing so must ensure
that they recognise the influence of institutional racism in shaping and
developing their research. Therefore, the question becomes not whether
white researchers should conduct research on minority communities but
wlrether their interpretation should be considered the most authoritative.
Indeed, thcre can tre hoth advantages and disadvantagcs. In her research on
Black women, Andersen writes that she was awarc that the women might
nor hav€ reported the same things to her as they may have donc ro a black
interviewer and that h€r data may, there(ore, have been impartial and
incomplete.'7 She goes on to argu€ that her data also revealed women telling
her thit thcy were able ro speak to her openly and freely without barriers'
whereas they may not have been able to do this with a black in:crviewer.
She thus adopted a self-reflexive approach where her role in the rescarch
was pivotal in gaining the trust of the respondents in order to elicit data
that was not imbued with problems of power. She notes that:
Developing analyses that ate inclusive of tacc, ctass and gcnder also requires that
discussions of race, class and gendcr be thoroughlv integrarcd into debarts aboui
research proces. and the anall'sis of dara. This rcquircs an acknowledgcnrcnt of
the complex, multiple and contradi('to.v idenrities and rcalirics that shaJrc our
collective cxperience.t'


In this study, a very specific group of British Pakistani Muslim women were
investigatei. All the women were from Birmingham, Bradford and London
a,,d agid between 25-40 years old and from a variety of socio-economic
backgiounds. I developed an interview m€thod, which allowed wonren to
raise-and discuss issuei that were important to them, and not only those in
which I was interested. All the women were offered anonymity for their
accounts and have been given pseudonyms.
The logic of why a sample o[ British Pakistani Muslim women was cho-
sen for research as opposed to'Muslim women' as a general category is
two-fold. FirstlS as a risult of the complex and changing nature of identi-
ty this approacii provides the oPPortunity to explore the subtleties of cul-
tural di(tirence bitween Muslim women. In this way, we are also able to
provide an insight into the dynamics, rePresentation and practice of pcwer

r( PH Collins,'t aming {rom thc Ousider within: The Sociological Significancc o{ Black
Feminist Thought' {t996t33 Social Prcble,,1s 14-32'
4' Anderscn, 1993, above, n 1.
Andersen, ibid, p 137.
'Stanilpoittt'.'Differetce',tnd lcninisl Researth 105

within Muslirrt communities. To categorize all British Pakistani Muslinr

women as belonging to an homogenous Muslim community presumes lhe
primacy of a universal religious Mrrslim identity. lt prevenrs one fronr
exploring ambivalence and antagonism outside rhe binaries of irrsider/out-
sider, Muslim/non-Muslim and subordinate/dominant.4" This does not
mean, however, that some British Pakistani Muslim women do not embrace
this unifying identity that homogenizes cultural an<i religious difference.
Evidence also suggests, however, that there are also unique differences
between and within thc category o['Muslim women', and by focusing upon
one group of womerr we are able to explore the conditions under wlrich
they develop strategies to obtain a Muslim divorce and participate in fami-
ly and community mediation. Hence, we can explore how idcntities may be
ambivalent, situational and strategic.
Negotiations with temale respondents were long and difficult. Matters
concerning rnarriage and divorce are largely confined to the private sphere
of the family and home and women are ofren involved in lengthy and com-
plex negotiations. They ma5 therefore, be reluctant to discuss such person-
al issues in a 'public forum'as epironrised by a research proiect. It is also
important to rememher that women are seen as carriers of'collective hon-
our'in the family and community and they play a central role in the sym-
bolic reproduction of 'community' and its survival.Jo Matters concerning
mariage and in particular divorce are closely tied to the honour of the fam-
ily and the implications of private details becoming public maybe too great
for the women. Existing research literaturc fails adequately to address this
issue of the specific methodological obstacles faced when conducting
research with diasporic communities in Britain. For example, it is common-
ly believed that respondents agrec to take part in a study once they meet the
researcher, yet this is not alu'ays the case.Jr [n this studl', consent still
depended upon lengthy discussions and'assurances'on the specific ways in
which the research would be used and the importance of confidentiality and
anonymity. Furthermore, only 25 of the 45 women who were approached
and who fitted the critcria for the in-dcpth study agreed to take part. The
other women failed to return phone calls or said that they were not ready
to share their personal experiences. I spent a lot of time thinking of how
I could contact the women and once contact had been made how I could
stay in touch with them. A number of women expressed their concern about
participating in research that might contribute to the stereotype of Muslim

" This approach draws upon thc work of HK Bhabba. Sec HK Bhabba, 'Cultures in
Bctwccn' in D Bcnnctt, ledl, Muhicuhutal States: Rethinkiq Difference a d lde,ttity lLondon,
Routlcdge, 1998).
'0 See for cxample Anthias and N Yuval-Davis, Racialized Botndaties: Race, Natiott,
Cendel Colour arul Class and thc Anti-Racist St rggle {London, Routledge, 1992}.
'r Phoenix, 1994, above. n 2.
i()6 Sa,riia Rano

\{,()rren as victirns oI a patriarchal cultural/religious systetrr. Sornc wotucn,

therefore, refused to take part in the research as they felt that it mighr lre
more darnaging to them rarher than beneficial. Out of 25 women, l3
infornred me that the implications of divulging private details would affect
not only themselves but also their imrrrediate families. Rubina explained,'l
have to be careful about what I say ..' . Itt not that I don't trust you btrt I
have to think about what will happen if what I say gets back to my fami-
ly'. Assurances of complete confidentialiry and anonymity were not enough
to convince sonre o( the rvomen.
This raises the question as to wl:y respondents may choose to take part
in a research proieit. Phoenix points out that respondents have. their own
varied reasons that 'include simple curiosity; desirc to talk and to be lis-
tened to; to help with the researcher's training or the aims of-the study;
[andl to complain about the aims of the study or about the specific.kinds
i.re"rch'." In this sample, the women were asked why they had chosen to
contribute to this studt and their responses were both diverse and conflict-
ing. For some women the study Provided an opportunity to Put across their
vcision of cvents. Others wcre kecn to challenge stereotyPes of Muslim
women as passive, and finally a small numbcr of women hoped the research
would hasien the introduction of Muslim family law into English law' The
period of negotiation between the researcher and respondent to ParliciPate
in the strdy is a formidable time for th€ researche(. lt is during this time that
the respondents are in the powerful position in refusing to take part and
possibly curtailing the obiectives of the proiect. Even when consent is 8iven,
iro*.".r, negodations continu€. tn fact, discussions with the women over
how the research would proceed and develop continued once the interviews
had been completed. Out of 25 women, 8 expressed concern over what
would happen to the interview taPes once the research had been complet-
ed. Brannin suggests that particiPants respond favourably to some methods
and not to otlre.s whett there is an overlap between the concerns of
researchers and those of participants, and'where both panies are in search
of similar explanations'.lr Perhaps, somewhat unsurprisingly, the shared
experiences of other women were important.



There has been much discussion in the research literature over the unequal
power relations between the interviewer and interviewee. Feminist writers

'l jPhoenix. i6il. at 55.

" Sr"nn.., N"- ttlothcrs at \l/ork E ploymcnt and Childcdte (London' Uowin Hyman,
1988t 324.
'Stdnlytittt','f)if[ercnrt,,::tri Frninist Rcsctr<.b 107

point ro the unequal relariouslrip, with rhe intervierver having grearer

pot'er over disclosure and inste;d they pur forward a rrethod which
errrphasizes notrons of'rapport'and ,self-jisclosu(e'on the parr of rhe inrer-
viewee. Through a sharet'gender identification, female interviewers are
able to estatrlish rn rhe interview a,rappon'thar ultimately leads ro grearer
disclosure. This approrch has been ciallenged, however, for irs failure ro
recognise thai power relations transcend gender idenrification. Viseir
points our that class, ethnic and religious factors must be raken into
accounr. Sirailarly, in tlris stu<!y, I was positioned in differenr u,ays by the
interviewees in rernrs of a perccived culiural, religious and gendei identity.
lhrs rarses tnteresting questions that challenge the traditional research
orthodoxy, which argucs that the researcher is in a more powerful posirion.
For example, was rhe research process affecred when i was perceived in
ways which I found objectionablei If I felt I was perceived in an objection-
able way, how did the rnrerviewee respond to trcing obiecrified? This
process of objectificarion is usually observed where the interviewer and
interviewee are racially/erhnically different. Song and parker point our,
however, thar objectification can also happen where the inrerrlewer and
interviewee share similar racial-/ethnic characteristics.JJ In addiriorr, the
research process must rake inro account rhe ways in which interviewees posi_
tion interviewers and how they are perceived and consrructed. Researchers
nray feel, for various reasons, thar they wanr to respond to positionings
themselves and that this is an integral part of any inteiview dynamic. These
positionings by both the interviewer and the interviewee are inrportanr as
,h..I..lI affect rhe research process. For example, rhe interviewees might
withhold or disclose certain kinds of information, depending upon th;ir
assumptions about the researcher; interviewees might describe aspects of
their lives and their identities and compare themselves to the researcher.
Like..vise, this raises the questiorr of the extent to which rhe interviewer
ought to divulge personal details during the course of the inrerview.
Ribbens notes:
lr does seem to me that to talk about yourself completely op€nly in an interview
situation might significantly shi(t whar is said to you, in fairiy unpredictable
ways. r0?e need more work on the various
advantages and disadvantages of such
differenr approaches. Perhaps what we should be sensitive to, is to taie our cu.
from the person bcing interviewed.{i
This approach can make an important contribution to the research process.
ln spite of the obvious difficulties concerning confidentiality, the inrervie-
wees in this project did directly and indirectly ask me questions, and I

" St,rnlev and Wrse, I988, above, n 16.

" Song and Prrker, 1998. above n 5.
J Ribbens, 'lnrervrerving-An .Unnattrral Situarion?",
tttlerrral totral font b1 579
lt996l t2 Wonrcn.s Sndics
106 Sania Dorut

rcsponded as op€nly as I could. Somerimes the discussious wenr on once the

tape recorder had been swirched off.'l'his may be imporrant nor only {or
the research but also for the researcher in order to make clear their own
contriburion and commitment to the research.


Prior to and during the intervieu,s the respondenrs discussed ar grear lengrh
their own religious idenritS often in relation to me. For exampte, prioito
the intervicw Safia explained that she was willing to take part in the
research because of its focus on Muslim women and Islam. Being Muslim
was o[ central importance to her and she referred ro this rhroughout the
interview. Drawing upon her experiences Song explains she was put into a
position whereby she found hersel( having to decidc how far she would
respond ro thc way she was'positioned' by her interviewees.rT Similarly, I
found myself in a comparable posirion and ponder€d long and hard ai ro
rvhether I should discuss my religious identity rvith the intervics,ees. I r.r,as
concerned about the effect that this dixussion would have upon th€ir
responses. This intriguing position resonates with the role oI thc researcher
as insider/oursider in rhe research process. For example, what are the
advantages and/or disadvantages of a Muslim woman conducting research
on a Muslim community? How does this type of matching affcct the inter-
view process itself? Are rhe accounts any fuller or more complete than in
those situations where 'matching' is not involved? In her reseaich, Edwards
discusses the expectations of the inrerviewees.$ ln the first meeting the
interviewer may challenge expecrarions, and the intervieu,ee may not know
where to place the interviewer. Given the simitarities in ethnic and religious
background, it is perhaps not surprising that interviewees woutd often
begin answers with'being a Muslim woman yourself ...'The response to
this standpoint indicares the importance some women attached tomy reli-
gious background. This was most vivid, however, when on one occasion an
interviewee describing her family's reaction to the breakdown of her mar-
riage suddenly stated,'... actually I don't feel comforrable discussing this
with you'. \flhen probed further she explained, .cause you know what goes
on in the community ... you're Muslim ... and ... well ... I lust don't feel
comfonable discussing ir with you'. k is of interest that this respondent
considered myself as an 'insider' and was, rherefore, unable to divJlge inti-
mate details to me. I was srruck by the way that this perceprion, one that I
did not immediately accept, had led to limited feedbaik from this intervie-

" Song and larkcr. 1998, above, n 6, at I 17.

'i D Edwards, Drsrorrrse atd Cogririott (London, Sage. 1990).
'Stdnllboit,t','Diferc,tce' aud Ftnntist Rcseatcb 109

\1r' bcing British I)akisrani also bought up issucs oI conrmon.tlitl' attd

: iierence. For exiirnple, Salma spoke at lelgth about the different attirudes
:<t*'een'Pakisranis and the English' towards marriage. She explained,'We
:c rhings differenrly don't we? Our families have expectations of us and rve
iave to do certain things, English people dont understand that do they?
Some o[ them rhey think u.e're all forced into marriages but it\ nor like
rhat'. More significantly, differences were discussed in the context of how
iar I identified myself as'Pakisrani'. Vhich part of Pakistan did my family
originatc [rom? Could I speak any language apart from English?
I was also asked a series of personal questions. Interviewees asked
r+'hether I was married and had children. Once I explained that I was mar-
ried and had children it was inreresting ro note how some o( them related
rhis fact to their own situation. For example, Mina informed mc,'being
married is important for Muslim women. I don\ think women are recog-
nised in the community unless they're married'. When probed funher on
r+,hat she meanr, she explained, 'well when I was married I was accepted
more ... you know like what I said and did seemed to have more authority
wirh the elders o[ rhe community and family. Divorce is really shunned
upon and that's why I think a lot of women will only get divorced as a last
resort'. C)n more than one occasion I felr my being married was a common-
ality, a space in which the interviewees felt at ease wirh discussing their
experiences of marriage and marriage hreakdown.
My dress code and appearance also raised questions of difference and
commonality. While a few women queried my not wearing the headscarf
most women shared similar tastes in clothing and dress. Hina commented,
'l like your scarf... you're like me, I don'r wear it on my head but I always
have a scarf around me'. Through this commonaliry, I was able to share
personal experiences u ith some of thc intervieu,ees.


We discussed earlier the ways in which relationships with informants may
impinge upon the research process. Similarl6 once the research has been
completed, we must consider whether this relationship should proceed. This
raises questions on the possible repercussions for participants divulging pri-
vate details and the responsibility of the researcher in protecting their par-
ticipants. ln my study, it was clear from the outset that participants were
prepared to contribute only if all transcripts of interviews remained anony-
mous and if pseudonyms were used in the study. A total of 7 women
requested that the interview tapes be destroyed once the research had been
written up and all the other women questioned what would happen to the
tapes. A final request from all the religious scholars of Shariah Councils and
some of the female interviewees was that they are kept informed of any pol-
icy implications the research might generate.
I l() Sarrrn Barl.r

K. (.0N(;t tJst()N

ln this chapter I have explored the relatiorrship in social research l)etwcen a

feminisr standpoinr rheory and cultural difference to consider how the
researcher's positionality shapes the strucrure and substance of the research
study. The question posed was how to explore and present complexities and
tensions in data based upon culrural and religious differencc u ithin thc cotr-
text of feminist researeh. Drau'ing upon the concePts of standpoint and dif-
ference rve found that this rpproach allows us ro inrerrogate whar we
understand as culture, community and identity as fluid, changing and con-
tested cntities that are open to social and cultural contestation within
minority ethnic communities. Furthermore, instead of denying the impor-
tancc oi th€ standPoint of rhc researchcr in the field, this approach demands
a critical analysis of their engagement in the research prcrcess. The useful-
ness of this approach lies in the fact that it provides the means hy which we
are ablc to interrogate the power rclations upon which the research is
The concern of conducting research deemed 'sensitire' within local com-
munities raises the importance of identifying the local context in which the
communities are constitured. In this study, bearing in mind the difficulties
of access to participants and the role of'gatekeepers', the rising number of
attacks on Muslims meanr rhat the bene{its of contributing to the research
that addresses difficult questions r,r'as not always viewed as benefiting the
community. As a consequence' access to some material was withheld,
research observation limite<i and access to the female users of the Shariah
Councils chosen denied. Nonetheless, with the material made available, I
have been able to provide an insight into how these bodies resolve family
I found that the gendercd experiences and realities of Muslim womenl
lives'mean a multi-faceted approach to conducting feminist social research
must be adopted. Further, the influence of the religious and gender identity
of the researcher on the research process is subtle and complex. Mccarthy,
Holland and Gillies$ ask,'how do we place ourselves as researchers' with
our own sympathies and particular persPectives, within such multiplicities?'
The dichotomies of insider/outsider' are too limiting and fail to capture
issues of di(ference and commonality when the researcher shares similar
ethnidcultural and religious idenrity.
Do we need a radically different approach to conducting socio-legal
research on 'sensitive' issues within minority diasporic communities?

'e IR Mccarthv. I Holland and V Gillies, 'Muhiple PersPecrives on the "Family" Lives of
Yo,is Pcoole: i,,4.thodolosi.al and Theoretical issues in Case Studv Reserrch' (2001) r'
lntcriationit lournal of Soiat Rescarch Methodolog l'
'Standpoittt','Differctce' ;t,r;.l Fetrtirtist Rese,ircb I I I

Research.findingssuggest we need ro incorporare notions of difference and

diversiry inro rhe fenrinist analytical approach. As llall poinrs out:
The tcmpt}ion to csscntialize'community' has ro be resistccl-ir is fantasy of
plentirude in circumstances of imagined ioss. Migranr communirics bcar thc
imprint of diaspora, 'hybridizarioni and difference in thcir very consriturion.
Their vertical inrcgrarion into thcir traditions of origin cxists sidc bv side wirh
thcit la(eral linkages to other ,communities' 6f intcrest, practice and asprra:ion,
real and symbolic.n'

The concept of'standpoint differences' allows us to draw upon different

theoretical approaches while recognising the complexity of i;dividual his-
aories, shared family lives and srandpoints of gender, generation, class and
ethnicity... all interwoven in these related but individual accounrs'.6rThis
approach allows us to interrogate what we understand as culture, commu-
nity and identrty as fluid, changing and contested entities, which are open
to social and cukural contestation within diasporic communities. As a fem-
inist researcher, I was able to draw upon rhese multiplicities and nlove away
from the rraditional dichoromy of Muslim wonlen as subordinared and
oppressed within local Muslim communities.
Finally, I must pay tribute to all those women who contributed to rhis
study and chose to share their erperiences, often in difficulr circumstances.
As one interviewee reporred:
I was the shameless one who wanted a divorce... , My mum would mcct somc-
one in the shop who would say your daughters a whore bccausc she did this, this
and this and people would invite rhemsclves to my family home uncles o( mine
and say you know you should now disown hcr and have norhing to do with her
and all this kind of stuff. So my family had that for mann mafly years.

Pursuing this type of research depends on women placing sufficienr trust

in a rcsearcher to share thcse experiences with wider audiences, both with-
in their own ethic and religious communit5 and in society more generally.
The political and ethical challenges are many, but it is imporiant that
socio-legal researches cngage with the issues raised by feminisi standpoint

S Hall, 'Conclusion: thc Multi-culrural Qucstion, in B Hess€, lcdl. IJnlsettled
Mukiadturulisns ll*ndon, Zed Books, 2000) 209-241.
Mccarthy. Holland and Gillies 2003, above, n 59, at 19.

Using Ethnography as a Tool in

Legal Research: An Antbropological


lTlrr. P()\\'[.R or law in regulating rhe social, econtxric and polirical life
I of society is widely acknowledged. Borh lau'yers and stxial scienrists
I are concerned with rhe relationship between law and pou,er-where
it is located, how it is constituted an<i u,hat forms ir takes. They address
these qtrestions, however, from differenr perspcctives s,ith rhe result that
they provide very different insights inro legal analyses and the ways in
u,hich law works. Conventional legal theorists limit the scope of their
inquiry to an analysis of law-as-text through a rigorous exposition of dtrc-
trinal analysis founded on a specific set of sources, institutions and person-
nel that gain their authority and legitimacy from a formal model of law
derived from the nation-state. In contrast, social scientists pursue a broad-
er remit which extends heyond the study of fornral legal institutions to ral<.e
account of the social basis upon which law operates. Anthropology of law
falls within this latter category providing a contextual analysis of law that
highlights the e(fects that economic, social and political processes have in
estatrlishing differential legal relations among individuals and social groups.
This approach provides an alternative vision of law from the one pro-
moted by conventional legal theory and discourse.r In promoting another
viewpoint anthropological perspectives have made a major contribution to
the study of law by challenging Western notions of what constitutes a legal

I This theory and discourse forms pan of a lormalist or ccntralist nrodel of law. For a dis-
cussion and cririque o{ this legal model see AGtifliths,In tbc Shadou.' of Martiage: Oender
ard Justice iu dn Afticat Connunity lChicago, IL, University of Chicago Press, 1997l' 29-38.
I l4 Anre Criffitl;s

donrainr and by exrending lhe concepr of lau, lrc1,ond rule-hased forniula-

tions to incorporate vieu,s.r('law as process'.r In.rdopring aoor-oriented
perspectives rhar interrogare who is ,inside' and .ourside' law. rhese
approaches have highlighted the frontiers of legality.r Through pionecring a
inethodological appro:ch based on rthnography that has focused on local,
specific, micro-sruJies, issucs about race, class and gender have been high-
lighted in ways that expose the inadequacies of legal systems in dealing with
them both rn theory and practice.
My chapter explores an ethnographic approach to law and the advan-
tages of such an approach when d<rumenting people's experiences of law
in daily life. It is based on fieldwork carried out in southcrn Africa, among
Bakwena6 in Molepolole village, betwee n 1982-89.7
This rescarch focused on women's procreative relationships with men
and their access to family law in Botswana. In pursuing this research agen-
da, which was aimcd ar developing the foundation course on fanrily law at
the University of Botswana,s I not only *'orked wirh convenrional legal
sources such as legislation. court records, and court proceedings, as well as
interviews with court officials, but also cxtended my research data to
include village rnembers discussions of everyday life, including women's and
men\ life histories and cxtended narratives of dispure. The life historics

1 KN Lcwcllyn rnd EA Hocbcl, The Cleyaue Way: Canllict and Asc Low irr primitile
ly!1qry$'tcc (Nonnin, OK, Univcrsity of Oklahoma Prcss, l9{lh M Gluckman, fic
Itdicial Ptocc,s Among the Bd.ots. ol Nonhc.,t Rhodcsia lzli.I,lrial,2r cdo, (Manchcstcr,
YUP, l95JL P Bohannan, lustice and Jnlgmrnt A,"o,,g the Trr, (London, OUp for thr
Iotcrnationel Alrican lnstitutc, 1957); L Poipisil, Kapa kd pdptd,r! aud ficir l,aw (Ncw
Havcn, CN, Yalc Uoivcrsity lublication in Anihropology. No Si, 11581.
_ ".SF Moorc,'[.aw and Social Ch:ngc: Thc Scmi-Autonomous Socirl Ficld as an Appropriare
Subicr't of Study' ll973l 7 Law Socicty Rerieut 71946i SF Moorc, Lau as process: An
A.nthropological Apptoach lLondon Roudcdgc and Kcgao paul, lgig); L Nadcr and B
f-ngvcsson,'On Studying Ethnography of Law and its tonsequcn..rs.in J Honigman,lcd),
Handbooh ol Social atd Cahudl Airhrcpolosy (Chicago, fL McNally. Igi3t: lL Comaroff
and-SA Robcrts, Ralar and Proccsses: The Ciit"tal ligic of Disp"tc'i, an ilrii,t C,ontett
(Chicago, ll Univcrsity of Chicago Press, t98l).
'O Harris, lcdl, Inside and Outsidc lru: Anthrcpologicat Studics of Arrhoriry ond
Anbiguhy lLondon, Rour lcdgc, t996).
' B dc Sousa Santos, 'fotuari! a Neut Commot Sense: Law, Sciencc and politics it ,he
Pdrudignrdtic Transition (London, RoutlcdSc, 1995).
' ln Scrswana, onc of thc otficial languages in Botswana. Thc prcfixcs .Br'and .Mo' is the
plural and singular modificrs of nouns designation persons, so ,Bakwcna' is thc plural lorm of
Kwcna, that is Kwcna pcople or pcrsons.
' For a detailed
r Edinburgh account of this rcscarch scr Griffirhs, above, n t.
ljnivcrsity had _long cstablished links whh ihc universitics of Botswana,
-Swaziland, and ksotho and at that timc providcd two ycars of undergraduatc training in l:w
in Edinburgh out ofthcir five ycar programmc. ln l98l Sandy McCallimith aod mvscifassisr.
cd in s€ning up.n indcpcndent law department at thr Univcrsity of Botswana.
llsing Ethnograpbl.as a Tooi in Legal Rcsearcb 1l-s


\.. ctrrret

rrttc.c.! 0 lffi,n

were Bathered from members of Mosotho kgotla which represented 1 of 73

such social units that made up the village in 1982.t
These life histories and discussions ofeveryday life were crucial in reveal-
ing village people\ perceptions of law, the circumstances under which they
do or do not have access to formal legal forums, and in panicular, the con-
dirions under which individuals found themselves silenced or unable to

' Thcse life histories collcctcd in 1984 and 1989 cxpandcd on unpublishcd data gathcrcd by
lssac Schepcra in 1937 which he kindly gavc mc. This matcrial includcd gtncalogics of
Mos"tho kgotla which madc it possible to tracc the dcscent of people associated with thc kgot-
la in 1984 back to 1937 and to develop a historical profile of thekgotla's development.
I l6 Arrrc Criffitlr

negotiarc u'ith orhers in ternrs of daily life. -l he latter is especillly rnrpor-

raot for, like orher jurisdictions, it is in daily life rhat the p,,*,.r and autiror-
ity ro n€goriare with others has rhe greatest impact <xi indiuiduals' lives.
This is because few ,iegoriations becorne disputes rhat require handling in a
legal arena, such as a court.'o Such information highlighri the specificlcon_
crete, lived-experiences rhat inform people's lives, a dirension ihat is often
missing from official narratives thar focus orr subsranrive and procedural
aspects of the legal system as well as its more abstract clainrs to equality and
The life historics and narratives not ooly document individuals'experi-
ences but connecr rhem ro the broader social polity to which they betng,
one that extends b€yond institutional forums, such as courts, to incorporate
networks revolving around kin, marriage, and varying forms of resources.
They provide a picture of continuiry and change t*o generations
that underpins the differences between and among "arus
the sexes as well as
demonstrating how menrbership o[ different family networks shapes
women's and men's access to resources, including the power io negotiate
with one another How rhis power is constructed remains unarticul;ted so
far as the formal legal sysrem is concerned, but understanding how it is cre-
at9{.and operates is especially important for women giveir the ways in
which their access ro resources is nrediated through the gendered nerrvorks
of family_and houschold, in conjunction wirh the broadir economic, polit-
ical, ideological and social domains of which they form part. For thesi fac-
tors place women at a disadvantage in their dealings wirh men when it
comes to acquiring access to and control over the resources that shape their


As with any Tswana village, the organization of Molepolole is srructured
through administrative units, known as wards and dikgltla,rr which derive
from households. Ir is through households that the poliiical structure of the
morafe or polity maintains itself. Kwena sociery like other Tswana merafe
(politics), revolv65 61orn6 a tightly organizej hierarchy of coresidential
administrative-units. Their p,olitical community is conceivei of as a hierarchy
ofprogressively more inclusive coresidential and administrative groupings,

M Gehnter, 'Justicc in Many Rooms: Courts, private Ordering and IndiEenous [:w,
(.19811_19 J.onmal
ol Lesal Plurulisn and Unofficia! Law t4?; H C,e"", iitii r"
Whdt_Peopk Do d,ld.Think About Going to Larz (Oxford, Han publishine, 1999); 1,,srice,
A Cenn
and A Pat.rson, Parrs to Jusrice Scotland, What Peol,le h Scorhnd DcTd Think Abott
coi,tt to l,ab lOxfotd, Hart Publishing, 2001).
r',Dikgoda reprcsent
more than onc ligotla that make up the pluralrty of units that grve rrse
to thc Kwena pohly.
Llshg Ethnograph)'as a T<xt! ru L-egal Rcsearch 117

beginrring wirh hcuseholds, and exrending rhrough kgotlas and fanrilv

grouPs, to wards which represent major units of political organization.
These are presided over by men. The Chief's kgotla which is rhe most senior
and powerful ward in the morafe, represents the apex of the administralive
and political structure through which the kgosi ('chief') cxercises his power.
Vhen I began my research in Molepolole in 1982, with Mr Masimega who
acted as my interpreter,r2 there were 6 main wardsrl and 73 kgotlas.


rVhen it comes to property and resources in Botswana, Kerven has noted
that'Tsrvana livelihoods are made within the minimal core of the family
and the maximal universe of the southern African economy'.rr Families
depend on a combination of'crops, cattle and wages' for their existenee
which'are combined according to a familyt class position and stage in the
life cycle'.15 Migration forms an integral part of family life and has done
ever since the founding of the Bechuanaland Protectorate in 188-s. This has
continued into the post-independence period from 1956 but the forms have
shifted towards a greater degree of internal rather than external migration,
due to dcvelopment taking place within the country, as well as South
African policies now geared to restricting the numbers of external migrants
working in South Africa. Most families in Molepolole are dependent on a
mix of subsistence agriculturc, livestock and cash for their existence and on
family members acting co-operatively to pool their resources. This interde-
pendence among family groups based on the foregoing gives rise to what
Parson has termed the peasantariatr5 who represent the majority of families
in Botswana today. However, there are a small group of those who have
been able to focus on other acti'rities and to form part of an elite, referred
to as rhe salariat.rT Their focus on education (often to university level) has
enabled them to acquire skilled and stable forms of employment, as bureau-
crats or government civil servants, which provide access to a whole range

Mr Masimcga, who was ncaring scvcnty whm I stancd my rcscarch was affcctionatcly
know in thc villagc as'Mr Commonscosc' and assistcd gcncrations of rescarchcrs in thcir stud-
ics of Botswana.
rr Thcsc arc Kgosing, Maunrtlala, Mokgalo, Ratshose, Ntolocdibc and Botakelalo.
tt C Kcrrcn, 'Thc Effccs of Migration oo Agricuhural Produmion' in Migtdtion ht
Botswana: Pattetns, C-auses, and C,onsequences lFindl Reion Ndtiondl Migration Sudy vol 3)
(Gaboronc, Covcrnmcnt Printcg 1982) 544.
tt lbid,, p 54s.
u Parson, 'Cettle, Class and Statc in Rural Botswana' ( 1981) Tror.nal of Sortbern Africat
Stxdies 236-5 5 .
DM Coopcr, Az Oueruiew of the Botsuntu Chss Structure and its Aniculatiott uith the
Rural mode of koduction: Insights fron Selebi-Phikwe (Cape Town, University of Cape
Town, 1982).
'1,l8 Anu Griifitl..

of benefits. Fixarnplcs o1 t),rrh ftrrnily types exisr in Mosotho kgotla through

the descendants of M:rkokwe and Radipati.'s


Within families gender operates to constrain women's access to, and con-
trol over, resources. Although most women have access to land thcir abili-
ty to utilize it is depeldenr upon rheir raising cash to lruy the necessary
scedlings and other items necessary for its maintenance and mobilizing the
labour necessary for irs cultivarion. In rhese activities women, especially
from the peasantariat, tend ro be dependent on men because of the struc-
ture of Kwena society and poor employment prospects compared with
those of men.
Kwena society is based on households which form the basis for the potit-
ical structure of the kgorla and customary law. Authority is based on age
and status bur women do not have comparable authority with that of min
for although thev may act as heads of households,r'they can never bccome
headman of a kgorla.!0 In addition, material and social circumstances com-
bine to create a situation where it is the households of married men and
women rhat prove the most effective in agricultural production as they have
a greater command over the resources required for such production com-
pared wirh others, such as female-hcaded households.r!
rWomen also find themselves
at a disadvantage when it comes to acquir-
ing livestock. This is due, in part, to succession laws that favour cattle being
handed down from father to son, referred ro as estate cattle. Althougf

8 Thc mcn fvlakokwc. and Radipeti burh slarc thc samc iathcr Koosimilc, but havc diffcr-
ent moth.rs. For morc dctailed informarion scc Criffirhs. abovc. n l. o 62-lbi-
r' Thc Nationel Dcvclopmcnt plan
for thc ycars of t 985-i igi, i, ri""it b7,aoo-*t pto"
t985-1991 (Ministry of Finance and Devclopmcnt planning Ccntral Statistics Officc
t,aboronc, (;ovcrnnrcnt Prinrcr. 1985) notcs rhat .womcn prcdominatc among young aduhs
and-as hcads o[ houscholds' p 8. It also commcnts, that .Fimalcs hcad a thiri 6i thi housc-
holds in urban arcrs and half in thc rural arcas' p I l.
!'ln thc past womcn havc vcry ocr;asionally'actcd as rcgcnt for thc morale but in thcsc
unusuat orcumstan{6.they. w.r. sren ro bc fulfilling e malc gcndcr rolc. Howcver, sincc my
study *as concludcd Mosadi Scboko has bcco installid as a Kgosi for thc Balctc of Ramorswa.
'' lv{y data and rhat of others shows that it is thesc houscho-lds that havc rhc Dcccssary livc-
stock to plough and thus command thc labour ofothcr family membcrs, or who can afford to
hrrc whaacv.r is neccssary. S.e, for cxample, C Kervcn, UrDan and Rural Fenale-Hezded
louslhold;' Agtculrural ?roductiuiry in Botsuau (Gaborone, Ministry of Finance and
Dcveloprnent Planning, Ccntral Statistics O{ficc,.l979). Fcmalc-hiadcd houscholds, howcvcr,
which cxist without any malc contributions to thc household tend to havc an incomc that ii
less than halI rhar of male-headed houscholds and are among the poorest in the counrry. Sec,
National Deuelopment Plai (NDP7) 1991-1997 lMinistry oi Financc and Devclopmeni plan-
ning Ccntral Statistics Office Gaborone, Govcrnment printeq l99l) L7; UNlCiF, Chidrcn,
lYonrcn and-Deuelopntent h Botsu.nna: A Stuational Analysis (Gaboronc, Cou..n..nr of
BotsrvanatuNICEF, I 989) 58.
| )sit': Etburyrt1b .\, .ts i Tool it I'egd Rcsc'..rcb 1 I 9

druglrters cirtt atrd do lcquire sonre treasts (where suclr cilrrle cxist), thcir
share is rarely on a par with that of their brothers, espccirlly lheir eldest
[Trtxher who rakes over responsibility (or the farnily grouP on his farhcr's
death.ll Women may inherit livestock from their nxrther, lrut a nroaher's
opportunities for acquiring her own beasts are limited, as these cirn only
derive front certain sources of labour. Thcse include produce (ront their
own (atrd nor their husband's) land, which may be exchanged for livesrtxk,
or which may he '-rsed to rrrake beer, which in rurn is sold to provide the
caslr trt purchase livestock. Surplus produce rarel)' exists as most of u'lrat is
grou'n is consumed in house and is susceptible io drought, nrakirrg it
extremely hard to acquire livestock in this way. Acquiring nroney to lruy
livest<rck is also difficult for women given poor employmenl ProsPects and
rares of pay. Even where successful women have to cede control over such
livest<rk to the boys and men who ruu rhe cattle posts wlrere ihey are qllar-
Enrploymert is one oI the most in]portani facrors affecting tlte socill and
econonric position of u'omen in Botswana todll'.:t This is bccausc the
money it provides, that is essential for survival, is generalll'less availatrle t<r
u'omen for a numbcr of leasons. In the formal sector, \.r'omen are excluded
from employmenr that many nren engage in thc mining and consrructiotr
industries. Other lobs, requiring a certain degree of education, are beyond
both sexes although wonren irr Botsrvana, as elservhcre in Africa, are nl()re
likely ro lack these qualifications lhan men are." The kind ol ernployment
open ro the majority of women involves domestic service or working ls a
barmaid or shop assistant. There is competition for such work which is
insecure and poorly paid. In this situation rvomen find it hard ro negotiale
or enforce their terms of service even where these are laid down by larr'.
.lr,[en also experience difficulries but they have more options reg.rding
potential employment.

l! This is situation has lren documcntcd elsewherc in Africa, although rcccnt rcscarch b1'W
Bikaako and J Sscnkumba, 'Gcndcr, land and Rights: ContcmJ'ora1v Contcstations in l-aq
Polrcy and Practicc in Uganda' in L Muthoni \0anycki, (cd), Wonen ard Lt in Aftica:
Ainrq Religion ard Realizing Wonen's Rrglts (London, Zcd Books, 2003) J l-{.5; and C
Nyamu-Muse mbi, 'Are Lo;al Norms and Practiccs Fcnccs or Pathways? Thc Example of
Women's Propcny Rights' in A An-Na'im, \edl, Alnral'ttansfo rtatio,t and H ntu RiShts
in Africa ll-ondon, Zcd Books,2002) 126-50 notcs a change in practice that is to women!
:r Scc B Brown, 'The lmpact of Male Labour MiSretion on Womco in Botswana' (1981) 82
African Affairs 367-88; C Kerven, 'Academics, Practitioners and all Kinds of \(fonrcn in
Developmcnr A Rcply to Pctcrs' (1984) l0 Jownal of Southcnt Africax Sudies 259-68;
UNICEF, Cl'ildren, Wonet and Detelopntert it Bots@ana: A Sitkarrorral Aaal)'sr-s (Caboronc,
Governnrent of BorswanafuNICEF, 19931 lZ-20.
r' See HL Moore, Fenfitisn ard An,hrcpology (Minneapolis, MN, Univcrsity of Minncsora
Press, 19881 104.
120 Anne Griffitbs

The informal sector provides a supplemental or alternative means of rais-

ing income on which many wonren depend.2r Hou,ever, as srudies elsewhere
have shown,:6 invesrment in this secror does nor guarantee rerurns and
whe,t it involves illegal activities, strch as prostiturion, purs the wonrcn con-
cerned at risk. Among Bakwena experience indicates that the returns
women rec€ive are insufficient on th€ir own to provide for capital accumu-
lation or personal enrichment.


Many women do not have marital status in Botswana but ir is importanr to
note the socialcontexts in which marriage occurs and the implications that
this has for both married and unmarried women. For the peasantariat, rep-
resenting a subsrantial proportion of the population in Botswana, marriage
still play an imponant role in providing access to the broader networks of
supra-household managemcnt and cooperarion on *,hich they rely for their
subsistence. This is true of Makokrvet family from Mosotho kgotla where
there has been a relatively high rare of kin marriage among members of the
older generation and whose access ro land has been acquired through their
r?ives' maternal relatives.
Among the salariat, however, there has been a rendency to limir kin
recognitionzT in order to circumscribe obligations adhering to thesc rela-
rionships. Among this group women more frequently eipress negative
vtews on marnage.
Membership of different networks has implications for women and for
their power to negoriate their relationships with men. Women within the
peasantariat find their choices mediated through their position in relation
to male networks and structures of authoriry which provide the mainstay
for their existence. So for example, through male sibling support, some
women find themselves with the power of choice which is not ivailable ro
other women who lack access to this type of nerwork.
Within Mosotho kogtla, Olebeng, who is Makokwe's youngest child and
only daughter, has had several children with different fatheri. She has five
adult brothers who have all married and had children. In her case, howev-
er, neither she nor her family ever had any interest in marriage for her.
Among women within this group she is relatively well supported by her sib-
lings who have given her control of rhe natal household and who plough

r' !0 lzzard, 'Thc lmpa( of Migratioo on thc Roles of lVomcn' in Miprutio,, ih Botsuratra:
Pa-tterns, Causcs and Cttnsequences, abovc, n 12, p 654-707,
^ Sec abovc, n 21.
EM Kockcn and GC Uhleobeck, Tlokweng, A Village Neat lollz (tcidcn, Lcidco
University Institute of Ctrltural and Social Srudies, ICA Publication No 19, 1980).
Usiry f.thnagrapltl,as o Too! ir Legal Research 121



for her and provide her with food and cash when they can. Other women
from the same hackground are not so fortunate. Diane, for example, who
is of the same generation and roughly the same age as Olebeng has not only
been abandoned by her brothers but they have expropriated land given to
her by her mother. Wirhout her brothers' support she has found herself
unable to negoriate marriage and has had to rely on a series of male part-
ners who have only inrermirtenrly provided support for her and her nine
children. Shc represenrs one of the poorest female-headed households asso-
ciated r,r'ith the kgotla.
ln contrast, women within the salariat, have a greater degree of power
and control over the choices thar are opcn to them. This is the case with
Goitsemang. Her father, Radipati, was Makokwe's half brother but his
family have cxperienced a very different lifc traiectory from Makokwe's
descendants. Unlike his contemporaries, Radipati was an educated man
who educated his children, including his three daughrers (at a time when
many women received only a nominal education). This helped them
acquire formal employment. The eldest unmarried daughter, Goirsemang
u'orked as a rrurse in Sourh Africa and thcn in a rnanagement capaciry foi
a construction company in Botswana, enabling her to build a house in the
capital city, Gaborone. Her younger unmarried sistcr, Olebogeng, has also
acquired a plot of land in Caborone by working for the same company.
Radipati's sons were also educated and two of them even wenr on ro
acquire university degrees. Through their access to education and skilled,
stable employment, the family fits the kind of profile associated with the
salariar in that rhey no longer centre their activities around subsistence
agriculture and migrant labour.
Within this family group Goitsemang has had children with two dif{er-
ent fathers. But unlike Diane, her relationships had the potential for a
customary marriage from which she withdrew and she has now has no
interest in marriage as it'iust brings quarels'.
Olebeng, Diane, and Goitsemang are within the same generation and ate
group yet their lives vary considerably. Taking account of the specificity of
their lives is importanr (or government planning and policy development
122 Aute Griflths

related to'fenralc heaclcd lrouselrolds'ru as ir lras |een rhe subject oi lire.rr

controversy surrounding the de[inition and basis upon u,hich such house-
holds as a group should he rhe recipient of governmenr aid.r'
The li[e histories denronstrate that women's access to resources is shapcd
by the type of network to which rhey belong. So, women wirhin the peas-
antariat, who operare wirhin rhe matrix of domesric, agricultural and
unskilled lahour, find themselves heavily reliant upon rhe nrale netu,orks
and structures of authoriry which provide thcn u,irh support. Worrren,
within the salariar, however, who have stable employmenr o{ another king
are less reliant on male netwoiks and so experience a greater degree of inde-
pendence. Not only that, bur some o( these women have been able to
reshape the normative considerations that pertain ro women's dealings with
men within a familial conte xt.r0 Thus Coirsemang was able to challenge her
brother David over control over the natal household by reconfiguring the
rerms of the discourse in a way rhat would not have beerr open to Olebeng
or Diane.rl


The life histories demonstrate how access ro resources is inrimately hound

up with familial and household ties and how individuals, panicularly
women, are located within kin and social nerworks rhat control their dis-
tribution and utilisation. While some unmarried women, like Goitsemang,
are able negotiate control over their resource base the maiority o[ women
remain dependant on their relationships with their [athers, brothers, male
partners, or husbands for their support. This poses a particular problem
for unmarried women like Diane whose male kin have abandoned her.
While marriage mal,enable womcn to improve their access to resources
and enhance their status they still find themselves located in unequal
power relations with their husbands which are highlighted on divorc€.
These inequalities arise from the different positions men and women occu-
py in the family hierarchy, which not only involve access to and aurhority
over resources and the gendered division of labour within the familn bur
are also due to the different social conceptions that attach to rhe roles of
husband and wife.

r* National Devclopmenr Plan (NDP7) l99l-1997, ahove n I9, p 242.

rt E M Kocken and C C Uhlenback, abovc, n 27; P Peters,'Genicr, Developnrental Cycles
and Historical Proccss: A Critiquc of Rccent Rcscarch on Vomen in Botswana' (1983) l0(l )
lournal of Sorthern A{rican Studies l0G-22; C Kcrvcn, abovc n 21.
'n For more detailed information on this sec A Griffirhs, Reconfir,uring Law: An
Ethnographic Perspcctiv. {rom Botswana' (1998) 23 Law 6 Social lnqtiry 587,603-ll.
I' For more dctailed information on this see A Critfiths, 'Mediation, C,cndcr and Jusrice in
Botswana' (1998) 154 Mediarbd Qxancrly 33542.
Using Etbrographl. as a Tool itr Legal ilcsearch 123

Wh_at is at srake in the puhlic dissolution

of a relationship and clisrribu-
rron ol PtoPerty under cusromary law is displacing thc hurden of (attlt ont()
the other spouse.r' Thus both parties ,..L ,o ."..rp. blame for mariral
breakdown and to secure their share of property. The claims that are open
to them, however, diffcr, and it is particuiarly hrid for a wife to displaceihe
burden of fault. This is because a-wife is exiected to defer ro her husband\
authoriry as hcad of the household. So, for example, she is not permitted to
leavc home without his consent or without causi (eg, a death in thc family
or domestic abuse). rJflhere she does so, she will have ro overcome the
appearance of negative conduct before she can assert any claim to maritai
propcrty. Men's conduct, however, is nor viewed in the same way. So, for
example, where a husband is having an affair with anorher women, it is
considered inappropriatc for a wife to complain unless he is failing ro sup-
port her and the children or is using their family propefty to ,upport th.
other woman. Even where a wife is able to establish good ionduci,-she still
confronrs the problems posed by the structure of family p,operty.
Under Kwena cusromary lawrr ir is the husband who maintains control
and ownership of.the family property because he is the one who is puhlicly
accredited as head of rhe household and the person who is regarded as theii
children's cusrodian. In this context he is awarded most oi the properry
because he is responsible for handing it on to the next generarion. Among
Bakwena, childrent inheritance is a major consideratioi when it comes to
division of prop€rty. On divorce, children remain affiliated with their
father's familS and where there is propertn rheir interests often effectively
restrict or subordinate women's claims to property as wives. Thus wives
find themselves doubly disadvantaged comparei *ith th.i, husbands when
it comes to making properry claims.


I first met Ninika Bakwena in Mokgalo ward in 19g2 where kgotla mem-
bers were dealing with an ongoing dispute between Ninika anJher moth-
er-inJaw. On this occasion, Ninika complained that her mother-in-law had
locked her out of the dwelling that her husband, Moagisi, had built for her.
The tension bcrween them arose from the fact th-at Moagisi's mother
regarded Ninika as an unsuitable wife and did all she could tL disrupt the
marriage. Mr Bakwena Kgosidintsi, the headman of Mokgalo ward,
observed 'Moagisi fell in love with Ninika but his parents wan'red him to
marry enother woman who was half deaf. He refused and went to live with

For a more detailcd discussion of this scc Griffiths, above. n ,. D ll4-g2.
. The national legal system of Botswana inco,po.r,.t bo* .L.,o.l.yinj.-ornrno, rr* ,t r,
rncludes srarurory law. For details see Griffiths, above, n 1, p 53-j7 and 184_SS
l).4 Aq 'te C,iffiths

Ninika ar her parents'honre. Hc eventually married her lry spccill licence

ar rhe DC's lDistrict Cornnrissioner'sl office in l975.ro Parlo was not doire.]5
I{is parents relucrantly accepted the marriage. They disapproved because
when he became involved with her she already had a child by someonc else.
There was a formal marriage but it was vulrrerable because patlo, a crucial
aspect of [amilial approval (involving relatives and kin on behalf o[ both
families) was lacking. ln fact Moagisi's farnily's disapproval was well
known. Vithout the family's supporr Ninika was at risk bccause her own
family connections were less powerful than thosc of Moagisi who is relat-
ed to the headmarr of Mokgalo ward and ro the royal Kgosidintsi family.
Moagisi nor only has thc bencfir of rhose connections, but his sratus is
enhanced by perceptions thar his family is well off because its'members arc
in govcrnment employment. Moagisi\ two sisters are reacher.s, and he him-
self, unlike many in his Bcneration, has been employed since 1972 in
Molepolole as a messenger for the Vererinary department.
Ninika, however, comes from a poor family in Thato ward, Ninika's bar-
gairring position is further weakened by the fact that her farher divorced her
mother years ago and disranced hirnself from his daughters when they had
children out of wedlock. In conrrasr with Moagisi's sisters. Nioika and her
sister, have only a minimal education. Both work only intermittently, pick-
ing trp odd domesric or agricultural labouring jobs from local peopte or
institutions. I'hey operate on the fringes of the peasantariat.
Both women had children young. Ninika's sister had three children with
three di(ferent fathers, only one of whom provides any support. Both
women were close to their mother who died in 1988 but their male relativcs
ignore them and their children, and do not provide any support. A Thato
ward headman observed 'Ninika and her mother lived under vcry poor con-
ditions'and that the)i had no cattle. When Ninika and Moagisi mer she
already had a child by a man whom she had met in domestic service in
Gatrorone. She returned to Molepolole and had three children aged 14, 12
and 9 with Moagisi. Moagisi maintains that the father of the youngest is
Ninika's lover and that she was conccived when Ninika was moving
berween Mokgalo to her mother's home in Thato ward (or as Moagisi
alleged to her lover's place in Borakalalo).
At the beginning tlre families attempted to mediate the couple's problems
in the normal manner. These attempts proved unsuccessful. Over the next

tt In Borswana partics may marry accordiog to

civil or rcligious rites under s 7 of the
Marriage Act l97O lCzp 29:011 and strch a marriagc is registered. Panies may also marry,
holvcrcr, a.cording ro customary law which is cxempt from thc provisions of thc 1970 Act.
" Unlik€ a regist€rcd marriage. a customary marriage is a proccss which may uke many
ycars and which docs not neccssarily invol"e any p.rnicular idenrifiable or.casion. However,
Bakwena place great enrphasis oo a ccremony called pado which for them is a definitive mark-
er of a custonrary marriage, even although- they may recognise a relarionship as a ctrstomary
marriage without it having been performed.
Llsiug Lthtoll,uplt1. as a Tool fu Lcgtl Resr,,trcb t2-s

t\\'o l't.lr5 t.ltert.rvere sulrseqrrerrt hearings in Mokgll<l rvartl g,here Nirrik.r

!()llll)lillllcd.rll lreing derrred irccess l() her lrprne rrrid ot lrr..k ,rI srrpp,,11.
I hrrugh rhe kgorla osrensibly supported
Ninika no prog,ress wirs nude ovcr
rhese tssues.. In these rypes oI dispures reiJrives and kii a(cn]pt to ger par-
ries to reach consensus. Where this fails the dispute worki its *ay up
through_the kgolr;r sysrenr unril it eventually arrive; in Kgosing. rhc chicf!
kgotla. As the Bakwena's dispure demonsrrates rhis proce;s nra-y rake many
Wherr disputes are processed in rhe kgotla ihey rakc the following forrn.
Thc party_wirh a grievance initiates thJ hearlnj. S/he presenrs his or her
accounr of the grievance and is questioned by kgotla members present who
include the third parry hearing the dispute, eg, t-he headman, wardhead (or
Kgosing personnel) and the other pariy ro rh; dispure. The process is then
reversed and the orher party is likewise subjecr to questioriing by all the
legal representarion is permiited in ih. kg"tlr, including
Kgosing. Finally, rhe third part1, asks the dispurants to srateiheir claims and
where rlrey fail to reach agreemerrr asks kgotla rrrembers for their views.
Alrer consulrrriorr rvirh rhem he gives his decisron.
. Ninika and Moagisi wenr through this process on numerous occasrons
during their nrarried life. Their diipure eventually arrived in Kgosing in
l984.tlere Ninika not onll raised the issue o[ negiect but o[ her hushand,s
lover. This u,as <>ne of rhe rare rirrres rhat a hearin! rvas adjourned ro bring
the other wonran, Kgomorso, into the proceis. Du.ing the hearing
Kgomorso adnritred that she had had a child-wirh Moagisi tiur rnaintained
that this occurred trefore he nrarried Ninika and her lxiore owl marnage.
Now u,idowed, she explained that Moagisi visired her; his visirs to her
home u'ere to see his child. But Mr Kgoslnsho who was hearing rhe dis_
pute forrnd that'Ninika is telling rhe trirth. Moagisi, her hushand,'does
really.take carc of lrer. This kgctla has shown Miagisi rhar he is neglecting
his wife and children'-

(a) Ninika s Pcrspective

During rhe years Ninika was in dispure with her husband

I went-to Kgosing and was referred back from there to rhe DC
lmeaning magrs-
trare|r" where the case Iunder the Deserted wives and chirdren\ piotecrion Act
19531 has nor yet bcen called lin 19841. t went to Kgosing twice this
vcar Kgosi

DC\ optrated as mrSisrrates for rheir disrrictas we ar carry-

-- oui
admrnrsrranvf dutics. Todav Magisrrares Courts are staffed by maeistrates hut loial
P€oPle strll reter to rhese courrs ar DC! courts. Ninika was sent to thi Mfiistrrte,s.ot,rr
claim maintenance.
126 ,4nrc G,ifitrl;s

rirc I)C,.rrLI t,,l,l
l..ril rrr rlrr l)( ., ilcfhonc,i
n,.,,, *,,
tl)c(..,NothrnA hep6-nrrl. Irol.l thc kgorl.r
(i\lokgalo) a.d they.fixtd a darc for pcoplc
thc hcaring. lrt" t,u,t,J ,ru., called and
instructcd (ar Kgosing) rhar hc shoutd stay
nlusr suppor us. Thar u.as rhe ordcr nry
*t,i i.'",ia ri.'..r.iiaii rr,"r t .
husband gir"n Urii.jr'jia "nanorfrir,g.
Thc narrcr r+,as rhcn dcalt with once more _wo,
in,\lokgalo'ttcause i,lr xgosicn.ho
rcferrcd ir back ro thr ward. Howevcr nonr
o[ my rclarivcs wrre inlormed.
an impasse u,ith rhe kgorla sysrem and .Mr
11." lr-|^l"l*.i
was Derrer ro ctarm supporr rhrough the Sebele said ir
Magisrrare,s court. He explained
thar ir \^'ould be easier rhan t., keei on
when the kgorla men order Moagiii to
_ru.r'in,f,. lg",l"
";j i; il;il,
. Afrer.rhe hearing in r984 Nini-ka
ing sorghum flour,
....i;l ,;;;;i;till ."Jr"r, i".rra_
flour to make.brcad, , ,.rtiii;;i ;;l;.:lo,n.
ii!3 of powdered mitk but this.,ai ,i",1r.1...i*a
I 982.and 1984. During rhis period "ii *"i i"g-f"i *,**"
she *"s still ;. rn"gir,_*
to call her case. Supporr was ha.d ro come
rry. ir,.,.iii?rp p-i..,,n *t i.r,
she u as involved was a failure. .w..r.rp.a
*_ri ti, j. f."ll,"i.
burned [due to rhe severe droughrl. The."if ".r.,"ur.,
*"r ,t.y go,
scorched hy rhe sun. we sropped .il,iurrlng
rir.r,r,"J. "ri
'r.riiil, *r, *a*.a
to begging in order to survive. live by tJgging
fooa frorn oif,.i ..loti".r,
mosrly my husband's siste r'. Sometimes r g;,.it
give me some mealy meal for me and rh. jild..n. "
.rtri. ii*i ll
,"a ,fr.,
St. t rr'i..rr* a.p."a-
ent on orhers for her existence. In l9g4 she
comm.*.j'i, il'pr.t,l.rn fi"-
ing from day to day'.

(b) Moagisit Perspective

Moagisi presenred a very differenr accouni

o( their marital history. I-{e
maintained that the probrems began when
ruinik" i.ir i,i.',r-r.rn* ,t. .nir-
dren to stay ar her morher's home.,we
Ua qr"rrlt.i'"nl'i r,"a n",
beaten he r. I rhink ir was her own idea
f ,"
"o, ;;;i;;';;;
,i. *Ir'ro, ,,,.,-
esred in Iiving with me,. He stated.
port by Mr Kgosiensho he stressed ,h",
that *h;" ;;k.;;l;r;'i,,
ir.'t rro-
n; *.;ld i*a
;r;;;; "r ,f 1,,
wife-and children were living at home "r,,
in Mokgalo. He was told thar.l must
see to it that my wife and children
rhem'. In his view ir was Ninika
come U"".f. f,o_. rJ
*to.rurJrii,'1.'or"frl.rn, "d.L "uooo. r*
returned to her parents' home e very fe w days.
u. .o"fi a.'ii,,L uf.
never rells me anyrhing, she never responds,o.ny ".:rny
was made of his mother's role in ail
q;..ii;nrl Nl rn.n,,on
"f inlll"i t.

'' Thi. refsp.r.. m., bc to rhe Disrrict Commissioncr :s rhe mrgktrare at

prescnt everyday in rhe coun which thrt time was not
r,( sha.e
3r that flme ofren dertt dirccttv wirh
Di'rricr Administration. Thc
Usiryi Ethrouraphy as a Tool it Legtl Researcb 127

implied, u'as ro visit her lover. She would leave the children u,ith her moth-
er and rhen take off. To his nrind she was ignoring rhe kgoth pronounce-
ment that they should live together, ,she is not adually doing thrr. At sun
dorvn she goes a,,ay to sleep at her home'. He vehemently denied allega-
tions of non-support, explaining that as Ninika was absent so ofren, h€
bought footl which his nrother cooked for the children.
He firrnly denied allegations about his lover,'this is invented by my wife.
When a womatrt panicking or in sorrow she will say arrything that will
nrake people believc ihat her husband is a bad man'. He knew about rhe
case Ninika had lodged with the Magistrate\ court and commented that he
had also gone to the court'after I caught her sleeping with another man I
went up to district administration and asked the clerk of Ithe Magistrate's]
court what he would do'. He was ordered'to go home and support her and
the children'. The case in the Magistrate's court was finally heard and
Moagisi was ordered to pay support. Moagisi supported for two months
and then filed for divorce in thc High Court.sE Ninika did not know this at
the time. He asked her to sign a form which she did, unaware thar this was
connected with divorce proceedinBs.
Shortly after, Moagisi presented her with a paper from the High Court
saying that they were now divorced. He statcd that he had been granted a
divorce and custody cf the children. Ninika was shocked and went rc the
DC u,ho explained rhat the case was now over, that custody had been
awarded to Moagisi. She opposed this, but when visiting Moagisit mother
the children were detained by his family and shc has not seen rhem since.

1. Diuorce and its Consequences

Moagisi divorced Ninika for desertion and adultery with another man in
Borakalalo with whom he alleged that she had had two children. He main-
tained that she was already living with this man in 1984 when she claimed
support. Moagisi stressed'l made arrangements for her to stay in Mokgalo.
She did not stay, but went back on her own to the man in Borakalalo with
the children'. That Ninika did have a lover seems to have been common
knowledge in the community, but whether this was due to Moagisi's neglect
was unclear. The allegations of the affair with Kgomotso in thc 1984 hear-
ing proved to be valid. In 1989, he openly admitted to living with her.
Kgomotso is regarded as a much more suitable partner for Moagisi because
she is a teacher and is related to him.3e

As the panies wcre marricd under the Marriagc Act lg70 thcir marriage had to bc dis-
solvsd by divorcc under thc Mattimonial Causcs Act 1970 (Cap 29:07) which is modcllcd on
English divorce law.
" Thcre is a prcference for marrirge among kin, especially for cousins or for crosr-cousin
marriage. See Griffiths, above, n 1, p 41-44.
l2tl Ame Gri[[iths

For the divorce j\'lolgisi hirctl a lau'yer fronr (iitborottc. Ninikir had no
legal representation. Moagisi observed thar Ninikl did nor defend the
divorce,''she did not even aPpear. The iudgrnenr was in nt1' favour'. The facr
that shc knew nothing of what was happening did not concern hirn' He
interpreted her lack of resPonse as admission of the facts submirted in his
pleaiings. Although rhe High Court awarded Moagisi cusrody of all the
ihild..n,to he has allowed Ninika custody of their youngest 'beca use she is
still small'. Nothing was said about property and the mrtlet was not raised
at Kgosing.{r
Moagisi confirmed that he did not have any cattle or livestock. He even
obserr.d 'we have never had a field to plough'. Ninika never considered
division of property as'nobody told me that there was any property to be
divided'. However she recalled 'a bedstead, a table, landl four chairs' at
hon,e which had remained with lvtoagisi. She was less concerned about
these items than the loss of her clothes- ln 1984, she claimed that Moagisi
changed the locks on their door so thar she had to go and stay with her
mothir. lVhen she we:rt to collect her clothes which were in a tin trtrnk she
was told that Moagisi had taken them to the headman's house. She went to
collect them, but the trunk was nowhere to be found.
From 1984 onwards, Ninika tried to gain support through a serics of
temporary jobs. She worked as a labourer in the drought relief scheme unril
rhai ended, and then took on a tenrPorary iob as a cleaner for district
administration. After that she u'ent from place to place wherever short-terln
labour was needed. Her liaison with the man fnrm Borakalalo ended and
since 1987 she and his offspring have been living with another man {in
1989), with u'hom she also has two children. They find it hard to survive
living off subsistence agriculture and the occasional odd ioh.
Nlnika attributed the kgotla's lack of interest in her case and thirr of her
own relatives (who stoppcd attending hearings early on in the process), as
being due to the fact'my marriage u'ith Moagisi was not fourded ProPerly
[as patlo had not been done]'. She believed that'Moagisi had no intention
of living with me permanently as his wife- The Kgosing peoplc worrldn't do
anything because he had no intention of living with me'. ln her view,
'Moagisi planned to divorce me for a long time. He wanted to get rid of me
iong ago'.
In the disputing process it was hard for Ninika to gain access to hearings,
and when she did so little was achieved. She was clearly disadvantaged' not

{In making a custody award the High Court operates on the basis of what is-in thc child's
bcst intcrcsts'l Howevei fathers'applications for custody are often uncontestcd bccause of the
general social vicw that marriage iris the cffect of affiliating childrcn with thc husband's kin
irouo. a orooosition that is uoheld under customary Iaw.
- iithough th. p"nies wcre required to divorce in the High Court as Africans their proper-
ty would devolve according to custonary law unless certain exceptions applied.
{lsi:tt, [.tlnograpltl, a: o T,,o[ h Lt,g,rl Rcsaarch l29

1rnl1 l.y hcr f.rrnrll' hackgrorrnd

and inahiliry to nxrtrilizc kin in her supporr,
lrtrt also on accottnt of her lack of knowledge.
Unlikc some wonren who
have found rhemselves in conflict wirh their husbands over divorce.r
lacked knowledge abour'rhe system rhar she faced and this acted to
derrilnenr particularly where divorce proceedings were concerned.
It is clear that women operare within a gendeied environment As a result
women who are married find rhemselves in unequal power relations wirh
their husbands. This is because in most cases it is menis enhanced ability
draw on all forms of resources essential for a family base thar places rhem
in a stronger position rhan women to accumulate whar is necessary ro form
a household, and thus to clevate their power and social status in the social
world in which they live. However, thc effects of gender hierarchy not only
apply where women make claims against their huibands but may also have
an effect on their relations with other *omen,,, So, for exampie, marricd
y"I:n yh" are in recerpt of regular income (generally acquiied through
their husbands and adulr chitdren) may exerciie a degree of power over
other women who lack a regular source of income and iho, therefore, find
themselvcs dependent on these married women (whose households
are gen_
erally the best rcsourced) for employment in the agricultural or domestic
sphere. As a result, differential status nor only attacf,es irself to
the spousal
relationship, but also has an impact ol women! relationships wiih
another in ways that contribute ro the growing social strarificarion that
in evidcnce in Eorswana today..a In Ni;ka\ c;e she not only exoerienced
problems with Moagisi but also faced an uphilt strug3le when
she tried ro
call her mother-in-law to account for her aciions. Ar? d"rghter-in_larr
was in a less powerful position compared with her morher--in_law who
ag€, more senior status, and a closer affiliarion wirh Moagisi,s family
ating in her favour.
Women who are married not only face the constraints of mothcrhood
and limited economic opportuniry (in some cases due to their husband\
srpation of assets) hut also have to contend with their role as wives.
Such a
role situates women in a different position from that of their husbands
the family hierarchy, due to the different social conceptions thai
inform the
roles of husband and wife. In this context, it is not iust .ontrol or..
resources that is importani, but also the ideological component
thar attach_
es to spousal roles which generally op€rares r; the d.rri'..nt
of women in
their dealings with men. For this reason, Kwena women exercise
care in the

Scc Griffiths, abovc. n l, p 175-?6; A Criffihs, .Gcndering

Culture: Towards r plural
rcrqxclvc on Kw.na womcn! Rights, in JK Cow:n, MB Dembour and RA N(rilson, (eds),
uutturc and KBhts: Alrhrcpologrcal perspecrrues (Camhridgr, CUp, 20Ol) t02.
I lJ_I9.
)c. A (, rrhs. '5rbtrnes in Disnrrre over lnheritance: A View from Bor.*rnri 4S111
Afri.a Todtu 6t-P) 12002y
i' S.e aboie. n t9. NDp6 at 8, l9
and 2t.
| 30 A Gri!lith:

kirtds of issues that rhel,choose ro make public in confrontations rvith

spouscs irrrJ rn thc n:rys rhey present Iher|l. Given
rheir vulneratrle posrrrotl.
thrs involves establishing credrhility over the loi.rg rerm by building
on a
series o[ family consultarions and hearings over l"number o[ years. Under
accusarions of neglect and lack of support-which are only too rcal_wives
often seek to pursue a larger agenda ilncerning the preservation of present
.rnd future righrs to the ir family property if thiJas come under threar
their husbands'relarionship with and behaviour toward other women and
their families. While Nrnika arrempred ro do this she was singularly unsuc-
cessful in acquiring any real support for her position due to th-e factors
lined earlier.


These findings, based on an ethnographic study of taw derived from life
tories, inrerviews, participant obscrvation and extended case studies of dis-
pute, highlight the specific circumstances under which people have access
,:r:ul.gr and how this shapes their power to negotiat; wiih one another in
daily life as well as in a legal forum. They provide anorher perspecrive on
the relationship lretween law and powei fiom that pro*ot.d 'by formal
legal analyses, rhrough a.on,a^rurl that moves beyond thc con_
fines of convenrional legal discourse. "pp.orch
Sr.h ,ppro"ch, thar situates la* in
relation to other bodies and agencies that construct social relations, such as
tamilies, households, and economic and political insritutions, opens up for
discussion aspecrs thar remain unaddrissed by formal l.i"f

a) the conditions thar facilitare or impede access to legal forums;

b) the factors that underpin the powei and authority Jf narratives
in social-and legal sertings, including the role of gender, rhat
lead to rhe empowermen. of some individuals while silencing
c) a.lternative strategies for those who are excluded or silenced by
rhe formal legal system in seeking redress;
d) the gap berween law in theory and in practice; and
e) the broader question of how law is constituted aDd reconfigured
through social processes that frame both its continuity'and
transformation over rime.
Such discussion extends the remit of what constitures a legitimare focus
legal inquiry by drawing together rhe rhreads of .public'an"cl .priv"te,
sions of social life to reveal what underpins_the relationship b.r*..r, p-*.r,
law, and discourse that governs people's daily lives. ln doine ,o,
" -or.
grounded view of law is acquired, one rhar is freed frorn the rra'ditional .top
l ,t'tt l'.tl n,,tttFl'r ,rs.r 7,,,,1 r,. i , ..:/ 11, ., r,,l' l.

d,,rvrr'rrr,'tltl,'l l-rn rrr rrlrreh legisl.rtors.lnd judilcs.lrc.rccordcd lricr.rrclri-

(.ll \ul(r ,,ntr rl lltc fr,,(iucrir)rt rrI aurlrorit:trive legirl rlcirrrrrrg. r\rioPrrrrg
:r groundc(l licu' oI lir*' irr anall,sis is espccillll: perrinenr for Ku,enir
$'(nnenr for ir highlights rhe u,ays in ryhich iheir p,,*". ,,, negoriilre rhcir
itttitttate rclationships u,irh mcl is shaped by rhe genc.lcred consrrucrion ()[
rhe lrrrrlrl irr u,hich they live, one rhai also'frarnes rheir rclarionship rvith
other u,()rnen. The erhnographic chnr.rcrer of this fornt of analysis, derived
fronr derailcd field srudies, rlso ailou,s firr a nrore finelr. runed analr,sis oI
hrlu rirdividu:tls'nrerrrherslrip of diflcrerrti.rlll, srrrr;rrcrl rrctrrrrrks. strclr ls
rlr<>sc ass<rciatcd u,irh rhc peasantarial and salariet, sh.rpcs their:rccess r()
resources r.r,irh varying consequences for individuals'life rrajecrories. Thus
the Iife hisrrries nor orrly nrark the differences thar rrisc l.raween the gener-
iltions, and rhe sexes, but berween menrlrers of the sarle sex. They not onl1,
provicie irrrporranr infornration on specificities of rhe local rhar nuv lre used
rt> flesh otrt the n]ore al)srracr understandings of larv rh:rr are promored by
conventional legal discourse bur also provide irrr opporrtrnity for anrll,sing
rhe condirions trnder u,lrich change or transfr>rrrrarion nright bc hroughi
about. For studying rhe facrors thar give rise ro local differences (as rvell as
rhe continuiries or paterns that such life histories provide) creares an
urrdersranding of hon, dilferential porver relations lruong persons and
social groups arc consrruced and rheir effects. This in tLrrn (osrers insighr
into rhe porential for changc throtrpih rn analysis of rlre conditions under
rvhich porver and irs discourses may alter or l.le transf<trrrred over titne.
This gives rise ro lr more sophisticared analysis of lan, one rhat recog-
nizes and takes accounr of social differentiation and inequaliti,, sotnething
rhat is absent frorn discussion within rraditional legal discourse.ai ln mak-
ing these factors visible and opening them up for discLrssion, ethnography
pro_vides an opt,orrun;r)' of exploring in detail how class, ethnicity, geider
and age contribute to relations cf ineqtraliry thar impacr on individuals anJ
families, especially u,omen's access to and conrrol over resources such as
law..lt also provides a more grounded approach for pursuing srraregies for
Iegal change and rhus redressing rhe current inequities rhar exisr.

ai Scc above, n 1.