Anda di halaman 1dari 15


Citation: 15 Law & Soc. Inquiry 135 1990

Content downloaded/printed from

HeinOnline (
Sat Nov 15 13:30:21 2014
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:

Interpretive Sociolegal Research

Christine B. Harrington and Barbara Yngvesson
A major challenge for scholars seeking new directions in sociolegal
research is the persistence of old paradigms and assumptions about law.
The challenge for the new is not to be cast as part of the old by efforts that
assimilate its methods, goals, and results to earlier approaches.' Such efforts, aimed at comparison and clarification, tend to "domesticate" the
new,2 or in Boa Santos's words "doubly institutionalize" a developing project by reading the order of a conventional analysis into the emergent order
appearing in the interstices of new scholarly work. 3 In this essay we focus
on interpretivism as a developing project in sociolegal research. In particular, we discuss three aspects of interpretive research that are at the center
of current debates in sociolegal theory: meaning construction and the dynamics of power, legal ideology, and knowledge as politics. Our discussion
focuses on different readings of ideology, on different understandings of
power, and on the politics of interpretive research connected with these
readings. To illuminate the struggles over these points and at the same
time illustrate the process of domestication, we begin with a recent paper
by David Trubek and John Esser, "'Critical Empiricism' in American
Legal Studies."'4 Their paper lays out a treatment of ideology and politics
Christine B. Harrington is a professor in the Department of Politics at New York
University. Ph.D. 1982, University of Wisconsin, Madison. Barbara Yngvesson is
professor of anthropology at Hampshire College. Ph.D. 1970, University of California,
The authors appreciate the helpful comments several people made on an earlier draft.
In particular their thanks to John Brigham, Lynn Mather, Peter Fitzpatrick, Patricia Ewick,
Austin Sarat, David Trubek, Alan Hunt, and Sally Merry.
1.David Nelken, "Beyond the Study of 'Law and Society,'" 1986 A.B.F. Res. J.324.

2. Id
3. See Boaventura de Sousa Santos, "Room for Manoeuver: Paradox, Program, or
Pandora's Box." 14 Law & Soc. Inquiry 157 (1989). Santos uses Paul Bohannan's concept of
double institutionalization. See Bohannan, "The Differing Realms of the Law," inL. Nader,

ed., "The Ethnography of Law," Special Publication, 67 Am. Anthropologist 33 (1964).

4. David M. Trubek & John Esser, "'Critical Empiricism' in American Legal Studies:

Paradox, Program, or Pandora's Box?" 14 Law & Soc. Inquiry 3 (1989).

1990 American Bar Foundation



that provides a basis for our broader discussion of interpretive work in the
second half of this essay.


Trubek and Esser focus on the tension between "empiricism" 5 and

critical research, using the wofk of the Amherst Seminar on Legal Ideology
and Legal Processes to discuss this tension. They describe the work of the
seminar as a project in "critical empiricism" and draw on published work
by members of this group to explore how the interpretive turn in recent
sociolegal work is constrained by a continued adherence to the scientific
tradition-a tradition that values "valid descriptions of the world that can
be used instrumentally for whatever purposes individuals find useful. ' 6
They call this tradition "universal scientism," maintaining that it demands
that accounts be more " 'accurate,' more 'theoretical,' less 'narrow,' more
'complete,' [and] more 'sociologocial.' "7 Trubek and Esser contrast this
description of science with critical research. For them, "critical" implies
normative concerns, such as the interrogation of legal values (particularly
claims about the centrality and neutrality of law), and "critical" requires a
vision of "transformative politics."8 "Empirical," they argue by contrast,
values "an objectivist discourse and an apolitical stance."9
Similarly, Trubek and Esser see a tension between interpretive and
empirical research. On the one hand, interpretive research assumes that
actors are embedded in "a collectively held fabric of social relations,"' 0 a
"web of social meaning" described as "ideology" by Trubek and Esser."
Ideology is implicit, rather than explicit (it must be uncovered through the
careful, interpretive analysis of social practices); and it is contingent, tied
to particular social and historical situations. On the other hand, interpretive work, according to Trubek and Esser, uses "standard social science
methods to provide valid descriptions of the historical and contingent
practices the new paradigm [the interpretive turn] identifies."' 12 If inter5. Trubek and Esser interchange the words "empiricism" and "empirical." Empiricism, a theory that all knowledge and meaning are dependent on experience, and empirical
research, which involves the use of observation for the purpose of providing an account of
the social world, should be distinguished. Their definition of empirical research seems to
incorporate both meanings: "careful observation of the external world for the purpose of
providing valid descriptions," id. at 39; and see Gary Peller, "The Metaphysics of American
Law," 73 CaL L Rev. 1159 (1985), whose definition of empirical research they use.
6. Trubek & Esser, 14 Law & Soc. Inquiry at 36.
7. Id. at 36-37.
8. Id. at 12.
9. Id.
10. Id. at 17.
11. Id.
12. 25.

Interpretive Sociolegal Research

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

search," 21 Law & Soc'y Rev. 165 (1987); see Trubek & Esser, 14 Law & Soc. Inquiry at 5 n.3.
17. We are social scientists (a political scientist and an anthropologist) who do interpretive research. We are also participants in the Amherst seminar.




In what follows, we discuss problems which the concept of "critical
empiricism" poses for understanding the methods and politics of interpretive analysis. Our argument is that Trubek and Esser's "critical empiricism" project domesticates three aspects of interpretive research: (1) the
location of ideology in social relations; (2) interpretive analysis and the
construction of meaning; and (3) the politics of interpretive social science.
This analysis of domestication allows us to move beyond the confines of
"critical empiricism" to central issues in interpretive sociolegal research.

We begin by examining Trubek and Esser's discussion of the way ideology is understood in the work of the seminar in order to show the influence of Trubek's earlier work on his essay with Esser.' 8 Drawing on
statements by seminar members' 9 Trubek and Esser define ideology as a
web of social meaning, an "accidental congery of images and metaphors" 0
that " 'appropriates' the individual so that without self-conscious reflection the actor comes to desire the ends, use the perspectives, and apply the
rationality that makes up the social fabric."' 2' It involves "implicit schemes
of response, disposition, or habit" which are "applied" in changing situations, but which constrain the range of activity that can take place. 22 Even
though ideologies are constraining, they are "open to adaptation" when
actors are confronted with new situations. Change is "especially evident"
when ideologies "clash," resulting in confusion, which in turn produces
ideological transformation. "Practice" and "process," according to Trubek and Esser, are the terms used in the seminar for the meeting and clash23
ing of ideologies.
What is striking about Trubek and Esser's account is the degree to
which ideology is disembodied from social relations. Ideologies are "systems of meaning" that people struggle over in an effort to persuade others
to "take on your ideology as their own. ' 24 Ideologies "clash" and "inter18. Trubek, 36 Stan. L Rev,. at 592-600. See especially the discussion of ideas as constituting society at 589 and of transformative politics as changing consciousness at 591.
19. See Trubek & Esser, 14 Law & Soc. Inquiry at 17 n. 31, where they cite a statement
by Sally Merry, "Everyday Understandings of the Law in Working-Class America," 13 Am.
Ethnologist 253 (1986).
20. Trubek & Esser, 14 Law & Soc. Inquiry at 30.
21. Id. at 17.
22. Id. at 18.
23. Id.
24. Id. at 20.

Interpretive Sociolegal Research

act with one another," 25 and may be "carried back" by those involved in
an exchange with equally disembodied (and dichotomized) spheres such as
"society" and "law." Ideologies "originate" in spheres such as "the legal
system" and "the community," they are "brought together" and "worked
together" in processes such as the handling of disputes, then they are " 'returned'" to the legal system and the community "in their new form. '26
Here, Trubek and Esser cast the critical concepts of interpretive sociolegal
research into the familiar law and society paradigm: ideology is separated
from social relations and is seen as having effects on society. Similarly their
conception of power is close to that found in the legal impact model:
"power is the ability to persuade, coerce, or otherwise cause other actors to
take on your ideology as their own." 27 Because Trubek and Esser's "critical empiricism" project retains the old division within positivist epistemology between "ideas" and "action," it insists on a much narrower field of
meaning for the term "ideology" than is used in contemporary interpretive
The view that ideology is separate from social relations also colors
Trubek and Esser's analysis of how structuralist and poststructuralist theory has shaped interpretive research. They briefly note the existence of
some debate and revision within Marxist structuralism. For example, they
state that neo-Marxist theory "loosens the tight structuralist assumption of
a deep and unalterable logic of social laws." '2 8 However, they remain trou'2 9
bled by the presences of a " 'material' account of ideological practice.
The narrower meaning of ideology they insist on obscures the theoretical
differences between structuralist and poststructuralist studies of legal ideology on the one hand, and conflates neo-Marxist critiques of determinism
and orthodox Marxist approaches, on the other. Trubek and Esser collapse these different approaches into a common reading of ideology in
Marxist theory, one that, in their words, considers ideology "as a relatively
stable and definable" set of categories which can be separated from the
political and economic institutions it is associated with. 30 They continue
to associate a "materialist" theory of legal ideology with the "program of
universal scientism [which] emphasiz[es] the need to describe the structure
of economic and political institutions in order to 'explain' how ideologies
function." '
25. Id. at 23. Also see Trubek, 36 Stan. L Rev. at 604.

26. Trubek & Esser, 14 Law & Soc. Inquiry at 23-24. In this discussion, Trubek and

Esser refer to an article by Lynn Mather & Barbara Yngvesson, "Language, Audience, and
the Transformation of Disputes," 15 Law & Soc'y Rev. 775 (1980-81). However, none of
this terminology (including the concept of ideology) is used by these two authors.
27. Trubek & Esser, 14 Law & Soc. Inquiry at 20.

28. 27.

29. Id.
30. Id. at 30.

31. Id. Trubek and Esser's treatment of Marxism and interpretive research is difficult



What is significant, if not defining, about interpretive studies of legal

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

Interpretive Sociolegal Research

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

tion: The Making of Community Mediation," 22 Law & Soc'y Rev. 709 (1988). Earlier
sources on constitutive theory include Eugene Genovese, The World the Slaveholders Made
(New York: Vintage Books, 1969), and Karl Klare, "Law-Making as Praxis," 40 TELOS 123

36. Pierre Bourdieu, Outline of a Theory of Practice 179, 191 (Cambridge: Cambridge
University Press, 1977) ("Bourdieu, Outline of a Theory of Practice").

37. Id. at 191.

38. Id. at 237 n. 47; emphasis in original.

39. Id. at 192.

40. Id. at 179; emphasis in original.



analyze strategies of power in criminal complaint hearings. The ideology

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

Interpretive Sociolegal Research

other. 44 While the givens may "clash" or "interact," it is difficult to avoid

a determinist position in this kind of analysis, because it locates the power
of law "outside actuality, outside events, outside time, outside community,
outside personhood." 45 Yet the moment when power appears most external it has "in fact become most internal, most integral and continuously at
work within social and economic practices."
In this relational concept of power, 47 officials are seen as participants
in power relations, both as constrainers and the constrained. While official power is often more studied and even at times more obvious than
power that is not officially recognized, interpretive analysis of power at
work in everyday practices examines how common-sense understandings
are forged. The authority of official power is produced not simply within
the legal system but in local interpretive communities where the common
sense of law in society is created. When sites for the production of law are
classified as "low" or "trivial," or when disputes in "lower" courts and
mediation programs are labeled "petty," 4 8 a hierarchy of law is created,
implying that there is a more or less "real" center of law. 49 To the extent
that Trubek and Esser's "critical empiricism" project does this, their position reintroduces the law and society perspective, distancing law from the
sites where it is produced, and locating power outside the relational contexts in which it operates.50
44. Timothy Mitchell, "Everyday Metaphors of Power" (unpublished paper, 1989).
Mitchell makes the argument that some interpretive analyses, particularly those by anthropologists which locate culture in "a textual structure" fall into this same problem. Culture
tends to be given an "existence or nature apart from . . . [its] repeated and yet always
differing performances. However much cultural text 'finds articulation' in social practices, it
is assumed to retain a separate nature as an unphysical 'structure' or 'frame of meaning.'

The distinction between particular practices and their structure is problematic not simply
because it is not shared by other traditions but because ...

it is precisely the effect intro-

duced by modern mechanisms of power." Id. at 23-24.

45. Id. at 35.
46. Id. at 38, a point that is based on Michel Foucault, Discipline and Punish: The Birth
of the Prison (New York: Pantheon, 1977).
47. For a discussion of relational conceptions of power see Peter Bachrach & M. S.
Baratz, "The Two Faces of Power," 57 Am. Pol. Sci. Rev. 947 (1962); Steven Lukes, Power: A
Radical View (London: Macmillan Press, 1974); and Michel Foucault, "The Subject and
Power," in H. L. Dreyfus & P. Rabinow, eds., Michel Foucault: Beyond Structuralism and
Hermeneutics (Chicago: University of Chicago Press, 1982).
48. Trubek & Esser, 14 Law & Soc. Inquiry at 24.
49. Interpretive research on appellate courts challenges this hierarchy, particularly "the
upper court myth," as a political artifact of early legal realism and examines these courts as
sites of law. See John Brigham, The Cult of the Court (Philadelphia: Temple University
Press, 1987), and also see Brigham & Harrington, 17 Int'l J. Sociology L at 46-50 (cited in
note 35).
50. The move in recent work to a focus on sites rather than on margins or centers is
intended as a move away from assumptions about core and periphery, without losing sight
of the power relations that shape meanings in these settings; see Harrington & Merry, 22
Law & Soc'y Rev. 709 (cited in note 35). Challenging conventional scholarship that retains
legal hierarchies and expanding the location of law not only decenters the conventional
hierarchy of legal form, but also challenges the recent revival of political pluralism in social



Interpretive Analysis and the Construction of Meaning

Trubek and Esser's reading of ideology as a realm of consciousness
distinct from practice parallels their reading of interpretive method as a
realm of science distinct from politics. Anthropological methods are specifically identified by Trubek and Esser as the locus of "universal scientism" (a concept they identify with accuracy, objectivity, and an apolitical
stance). 51 They provide only minimal discussion of what "anthropological
procedures" entail, however, and no discussion of what the interpretive
method in ethnographic research involves. The superficial discussion of
anthropology as science, and the explicit identification of science with objectivity and universality, not only masks the complexity of the scientific
enterprise but obscures the ambiguity and contradiction inherent in anthropological methods such as participant observation and, specifically, in
interpretive approaches to fieldwork.
Contrast, for example, Trubek and Esser's characterization of anthropological procedure as providing "accurate description" and as "advanc[ing] scientific knowledge" 52 with James Clifford's description of
anthropological knowledge as "contingent, the problematic outcome of
intersubjective dialogue, translation, and projection" and interpretive accounts as "just one level of allegory."'5 3 Referring to "the discipline's impossible attempt to fuse objective and subjective practices, '5 4 Clifford uses
Marjorie Shostak's ethnographic study of a !Kung woman 55 to illustrate
the inherent tension in ethnographic work between scientific discourse
theory-a revival best captured by the "many voices" view of "legal discourse" and the
embrace of Richard Rorty's philosophical relativism; see Richard Rorty, Philosophy and the
Mirror of Nature (Princeton, NJ.: Princeton University Press, 1979), and for an example of
sociolegal work that embraces Rorty's position see Austin Sarat & Susan S. Silbey, "The
Pull of the Policy Audience," 10 Law & Policy 97 (1988). For critiques of this position see
Alan Hunt, "The Critique of Law: What is 'Critical' about Critical Legal Theory," in P.
Fitzpatrick & A. Hunt, eds., Critical Legal Studies (New York: Basil Blackwell, 1987), and
Brigham & Harrington, 17 Int'l.. Sociology L 41. As discussed above, interpretive sociolegal research building on constitutive theory is interested in how modern forms of power,
such as law, gets separated from material life-from their own role in creating the relations
of material life, see Christine B. Harrington, "Moving from Integrative to Constitutive Theories of Law: Comment on Itzkowitz," 22 Law & Soc'y Rev. 963 (1988). If we limit the
interpretive project to simply documenting "challenging voices" or the "multi-vocality of
law," we will indeed fall back into the relativism of "descriptive" legal pluralism-a relativism which depoliticizes law by finding it "everywhere"-and implicitly embraces the politics
of that epistemology.
51. Trubek & Esser, 14 Law & Soc. Inquiry at 34-40.
52. Id. at 37.
53. James Clifford, "On Ethnography Allegory," in J. Clifford & G. E. Marcus, eds.,
Writing Culture: The Politicsand Poetics of Ethnography 109 (Berkeley: University of California
Press, 1986) ("Clifford & Marcus, eds., Writing Culture").
54. Id.
55. Marjorie Shostak, Nisa: The Life and Words of a !Kung Woman (New York: Random House, 1983).

Interpretive Sociolegal Research

and intersubjective dialogue.5 6 Vincent Crapanzano develops a similar

theme in his examination of Clifford Geertz's study of the Balinese cockfight.57 He illustrates the contradictions in a text that purports to present
"the native point of view," yet where the anthropologist's position "behind and above the native, hidden but at the top of the hierarchy of understanding"' 58 undercuts the capacity to present a view other than that of
an outsider and (in consequence) the authority to re-present "the Balinese
cockfight." In other words, the authority of the anthropologist to portray
the world of others is contingent on dialogue and engagement with the
particular, rather than on distance and generalization.
This issue is central to an understanding of how accounts of the sociolegal world are produced. As Rosaldo has noted, "[t]he ethnographer, as
a positioned subject, can grasp certain ethnographic phenomena better
than others ....

Consider for example, how age, gender, being an out-

sider, and association with a neocolonial regime can influence what one
learns." ' 59 At the same time, Rosaldo describes "routine interpretive procedure" as a methodology in which "ethnographers reposition themselves
as they go about understanding other cultures. One begins with a set of
questions and subsequently revises them in the course of inquiry. Thus,
ethnographers emerge from fieldwork with a different set of questions
than those they posed on initial entry." 60 There are limits, however, to
"repositioning" and thus analyses "always are incomplete." 61
The tension between distance, inherent in the anthropologist's "objective situation" as outsider, 62 and the engagement necessary for repositioning has been fundamental to the methodology of participant
observation from its earliest practice in the work of ethnographers such as
Malinowski, Radcliffe-Brown, and Mead, 63 and undermines claims that
ethnography and natural science have a similar methodological stance.
This same tension between distance and engagement is built into all ethnographic studies of law, and is explicitly acknowledged in works as diverse as
56. Id. at 104.
57. Vincent Crapanzano, "Hermes' Dilemma: The Masking of Subversion in Ethnographic Description," in Clifford & Marcus, eds., Writing Culture 74 ("Crapanzano, 'Hermes' Dilemma' "); Clifford Geertz, "Deep Play: Notes on a Balinese Cockfight," in C.
Geertz, ed., The Interpretationof Cultures 412 (New York: Basic Books, 1973).
58. Crapanzano, "Hermes' Dilemma" 74.
59. Renato Rosaldo, "Grief and a Headhunter's Rage," in E. M. Bruner, ed., Tex4 Play
and Story: The Construction and Reconstruction of Self and Society, 178 Proceedings of the
American Ethnological Society 192-93 (Washington: American Ethnological Society,
60. Id. at 182.
61. Id. at 183.
62. Bourdieu, Outline of a Theory of Practiceat 1 (cited in note 36).
63. See James Clifford, "On Ethnographic Authority," in J. Clifford, ed., The Predicament of Culture 26 (Cambridge: Harvard University Press, 1988).



Evans-Pritchard's study of the Nuer 64 and Carol Greenhouse's study of
Georgia Baptists.
Central to this issue, as Rosaldo's discussion of positioning implies, is
the role of power in the production of an ethnographic account. The interpretive process, focused on an analysis of the relational nature of power
and the production of ideology in power relations, is itself embedded in
these relations and its product is shaped in this context. In sum, the interpretive method is no less dialectical than the product of the method itself.
Its authority is contingent on engagement, on a dialogue with others that
is produced in relations of power. The interpretive process resists, by definition, any attempt to locate meaning "outside" these relations in a realm
of "objective" science. "66

The Politics of Interpretive Research

This brings us to the question of whether and how interpretive analysis of the sociolegal world is a critical activity. As noted above, Trubek
and Esser suggest that "a politically self-conscious practice of knowledge
construction" 67 involves scholars in work that gives value to victims and
introduces marginal voices in accounts of the sociolegal world. 6 They
claim that thus far such efforts in the seminar have been "timid" 69 and fall
64. E. E. Evans-Pritchard, The Nuer (Oxford: Oxford University Press, 1940); and see
Renato Rosaldo, "From the Door of His Tent: The Fieldworker and the Inquisitor," in
Clifford & Marcus, eds., Writing Culture 77, who discusses Evans-Pritchard's relationship
with the Nuer.
65. Carol J. Greenhouse, Praying for Justice 9-18 (Ithaca, N.Y.: Cornell University
Press, 1987). And see Barbara Yngvesson, "Responses to Grievance Behavior: Extended
Cases in a Fishing Community," 3 Am. Ethnologist 353 (1976), for a discussion of the importance of attending to local interpretation and responses for an understanding of acts and
events, rather than imposing a conventional (scientific) discourse of "cases," "disputes,"
and "outcomes" on the material. See also Barbara Yngvesson, "What Is a Dispute About?
The Political Interpretation of Social Control," in 2 D. Black, ed., Toward a General Theory
of Social Control 257 (New York: Academic Press, 1985), for a discussion of "point of view"
in ethnographic studies of law.
66. See Paul Rabinow & William M. Sullivan, eds., Interpretive Social Science (Berkeley:
University of California Press, 1979); W. J. T. Mitchell, ed., The Politicsof Interpretation(Chicago: University of Chicago Press, 1982); and George E. Marcus & Michael M. J. Fischer,
Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (Chicago:
University of Chicago Press, 1986) ("Marcus & Fischer, Anthropology as Cultural Critique").
67. Trubek & Esser, 14 Law & Soc. Inquiry at 45.
68. Trubek and Esser describe several approaches to critical research which they attribute to various members of the seminar (at 41-44). It is clear from their discussion at 44
and 45, however, that the approach they endorse is one in which critical work "consciously
construct[s] ...

a knowledge, which can be used to advance [the] ...

politics" of "a specific

marginalized group" (at 44). They suggest that only in taking such a stance is it possible to
move beyond "partial critique" and "partial adaptation of an interpretist stance" (at 45). In
what follows, we challenge this approach to the relationship of knowledge and politics.
69. Id.

Interpretive Sociolegal Research

short of "a truly critical practice of knowledge construction." 70 Drawing

on Sarat and Silbey's work, they distinguish research aimed at a "real impact on persons, groups, and institutions in [the] real world" from "a sim-

ple process of interpreting meaningful activity in unorthodox locales."
We question this instrumental approach to critical research. It is an
approach requiring that the observer become advocate-a stance which
suggests that interests are given rather than constructed in the interaction
with researchers and others, and also assumes that scholars are those best
qualified to represent these interests. The problem with Trubek and
Esser's view of critical research is that it collapses the differences between
researcher and subject and thus disempowers both. 72 An example of this
is found in Trubek and Esser's support for research that "gives voice and
credibility to those who question, in a fundamental way, state legality, existing practices and institutions."7 3 It is unclear in this example as to what,
exactly, is being transformed. What is going to happen that is "transformative" once the "voices" of the "victims" are "voiced" by the researcher?
What seems to be happening in this example is that the researcher'sauthority is enhanced by the use of the voices of the "voiceless, '' 74 while the
victims of discrimination are further disempowered by allowing the researcher to serve as their spokesperson. Transformation must involve
some sense of empowerment, of agency, and of change in the relative positioning of researcher and subject as well as in a broader field of power
relations of which they are both a part.
Rather than advocating an appropriation of the "interests" of those
we study (i.e., appellate litigators, property owners, Supreme Court justices, working class disputants, divorce lawyers, court employees and reformers, etc.), we believe the implications of the interpretive turn are
potentially more radical. Recognition of the contingency of interpretation, and its location in social practices, has the potential to transform the
relationship between researcher and subject in such as way that "indigenous control over knowledge gained in the field can be considerable, and

70. Id. at 46.

71. Id. at 44.
72. The collapse might be accomplished, as Santos argues, without disempowerment if
the researcher is "personally and existentially involved in the social context in which scientific knowledge transforms common sense knowledge, thereby transforming itself"; Santos,
14 Law & Soc. Inquiry at 152 (cited in note 3). But this requires, as Santos suggests, a specific
set of social conditions (globalization of participatory democracy). Scientific research can
contribute to creating these conditions by "structural inquiry into the number and nature of
sites" for the production of knowledge.
73. Trubek & Esser, 14 Law & Soc. Inquiry at 44, citing Sarat & Silbey, 10 Law &?
Policy at 140. Sarat & Silbey cite Kristin Bumiller, The Civil Rights Society: Antidiscrimination,
Ideology and the Social Constructionof Victims (Baltimore: Johns Hopkins Press, 1987).
74. See Rosaldo's discussion of this issues in "From the Door of His Tent" at 90 (cited
in note 64).



even determining. '7 5 A striking example of this shift in relationship is the

ethnographic film Two Laws, which involves a collaboration between
Western filmmakers and native Australians. 76 The construction of the
film in a group process of decision-making involving Australians and Westerners, the transformed construction of history that results from this, and
the radical decentering of knowledge and of power implied in the entire
production, constitute both a powerful political statement and a critical
ethnography. Key to this transformation, however, was a "repositioning"
of the relation of researcher to subject, since the filmmakers were invited by
the native Australians to represent their history and their law on film.
Work such as this suggests that it is important to distinguish the repositioning of researchers vis-a-vis subjects from the notion that it is possible
(or desirable) for researchers to promote the political agenda of those they
study. Repositioning can occur in a range of ways, from the rephrasing of
questions in response to engagement with those studied, to the active involvement of subjects in defining the research, as in Two Laws. It is in this
sense that interpretive work, particularly the new ethnography, is seeking
to move from a position in which the distance secured by externality condemns us "to see all practice as spectacle," 77 to an engagement with what
we study. This requires self-consciousness about the location of our work
in a specific disciplinary practice, with particular subjects, at a specific historical moment.
The product of this work is by definition contingent, produced in
relations of power in which researcher and subject are both constrainer
and constrained. The politics of interpretive sociolegal research demand
attention to power because interpretive work is embedded in social
In conclusion, we have a brief comment on the interpretive process
involved in making sense of interpretive sociolegal research. This work,
like that in other sites where sociolegal knowledge is produced, also involves the construction of "interests" and "positions." Most specifically,
observers must be attentive to power and avoid collapsing creative tension
into common perspectives in which struggles over meaning, and thus by
definition the politics of making meanings, are eclipsed.

75. Id. at 45. This approach is best articulated by Marcus & Fischer, in Anthropology as

Cultural Critique.
76. See James R. MacBean, "'Two Laws' from Australia, One White, One Black,"

1983 Film Q. 30 (1983).

77. Bourdieu, Outline of a Theory of Practiceat I (cited in note 36).