Socio Empirical Legal Research

Wiley and Cardiff University are collaborating with JSTOR to digitize, preserve and extend access to Journal of Law and Society.

http://www.jstor.org

Cardiff University

Law's Empire: Socio-Legal Empirical Research in the Twenty-First Century Author(s): Paddy Hillyard Source: Journal of Law and Society, Vol. 34, No. 2 (Jun., 2007), pp. 266-279Published by: on behalf of Wiley Cardiff UniversityStable URL: http://www.jstor.org/stable/20109744Accessed: 08-09-2015 07:32 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/ info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

This content downloaded from 93.91.80.6 on Tue, 08 Sep 2015 07:32:18 UTCAll use subject to JSTOR Terms and Conditions

JOURNAL OF LAW AND SOCIETY VOLUME 34, NUMBER 2, JUNE 2007

ISSN: 0263-323X, pp. 266-79

Law's Empire: Socio-legal Empirical Research in the Twenty-first Century

Paddy Hill yard*

The first section of this paper provides a description of the main

findings and recommendations of the report of the Nuffield Inquiry on

Empirical Legal Research, conducted by Professors Hazel Genn, Martin Partington, and Sally Wheeler. Professor Michael Adler also

published a paper specifically on research training, and the section also draws upon some of his analysis. The second section gives more context to the report by presenting some data on the increasing

penetration of law into all aspects of our lives. The third section takes a critical look at the recommendations and suggests that developing a research capacity in empirical socio-legal research is not going to be

easy.

INTRODUCTION

At a time when law's empire is steadily expanding, there is a major crisis in the capacity of socio-legal studies to produce high quality rigorous qualita tive and quantitative research into all aspects of the law. In 2004 the Nuffield Foundation funded an inquiry to investigate the issue. The final report of the

Inquiry and its recommendations were published in November 2006.l A

major concern is the age profile of socio-legal academics. At a seminar in 2005 on Education and Training, Professor Ian Diamond, Chief Executive of the Economic and Social Research Council, presented data on the number of academics due to retire within the next ten years. It showed that in

* School of Sociology, Social Policy and Social Work, Queen's University Belfast, Belfast BT7 INN, Northern Ireland

1 See H. Germ, M. Partington, and S. Wheeler, Law in the Real World: Improving our

Understanding of How Law Works, Final Report and Recommendations (2006). Copies can be obtained from Lisa Penfold at UCL ([email protected]) and a pdf version can be downloaded from the Inquiry website at .

266

? 2007 The Author. Journal Compilation ? 2007 Cardiff University Law School. Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA


disciplines, which have traditionally been associated with socio-legal studies -

law, social policy, and sociology - over a quarter of lawyers, nearly 30 per

cent of social policy academics, and some 37 per cent of sociologists will be retired by 2012.2 In a very few years, many of those who established and sustained empirical socio-legal studies will therefore probably be sitting in the Mediterranean or Adriatic sun sipping a C?tes de Provence, a Chianti or a Primitivo - or perhaps all three.

The Inquiry was conducted by three distinguished socio-legal scholars Professors Hazel Genn, Martin Partington, and Sally Wheeler. During their deliberations, Professor Michael Adler, another distinguished socio-legal scholar, published a paper specifically on research training.3 The first section of this paper provides a description of the Inquiry's main findings and recommendations and also draws upon some of Adler's analysis. The second section provides a little more context to the Report by presenting some data on the increasing penetration of law into all aspects of our lives. The third section takes a critical look at the recommendations and suggests that

developing a research capacity in empirical socio-legal research is not going to be easy.

AIMS OF THE INQUIRY, THE LACK OF CAPACITY, AND RECOMMENDATIONS

The specific aims of the Inquiry were to:

Provide factual information about current capacity for empirical legal research among lawyers and social scientists, particularly in relation to non-criminal law and processes; Explore the evidence for a shortfall in capacity to undertake empirical legal research;

Explain the causes of the problem including incentives and disincentives for conducting empirical legal research, drawing on overseas experience; Bring together key stakeholders in legal education, training, funders, users of research, and policy makers to develop a shared understanding of the issues and to identify where concerted action is possible; Identify a range of possible solutions; and

Make recommendations for a programme of initiatives designed to secure the future of empirical legal research.

The report begins by pointing out the key role that empirical socio-legal studies has played in civic, political, and academic life and ways it has informed a wide range of government and other bodies as to how the law

2 id., p. 12. 3 M. Adler, 'Recognising the Problem: Socio-Legal Research Training in the UK'

(January 2007).

267

? 2007 The Author. Journal Compilation ? 2007 Cardiff University Law School


works in practice. It suggests that it has been invaluable in 'revealing and

explaining the practices and procedures of legal, regulatory, redress and

dispute resolution systems and the impact of legal phenomena on a range of social institutions, on business and on citizens'.4 It anticipates that demand for this type of work is likely to expand as Parliament, government, busi nesses, and NGOs appreciate the importance of evidence-based research to inform the development of substantive law, the administration of justice, and the practice of the law. The report further recognizes the important role that

socio-legal empirical work has played in the theoretical understanding of law as a social and political phenomenon.

The focus throughout the Inquiry was on empirical research into law and

legal processes, defined as 'the study through direct methods of the operation and impact of law and legal processes in society'.5 Moreover, the terrain of the Inquiry was further restricted by excluding criminal law and processes because, unlike other areas of law, these areas had witnessed a lot more

funding of empirical research and have a much stronger empirical research

capacity. The Inquiry lasted for over two and half years and included launching a

consultation document, numerous meetings and seminars, and an email

survey of over 400 academics. Although the response to the survey was very low, if it is assumed that it was broadly representative of the current cohort of active empirical researchers, over three-quarters of whom are located in law departments, 7 per cent in criminology/criminal justice, 9 per cent in sociology and 3 per cent in social policy.6 Finally, the Inquiry collected a number of biographical pen-portraits from experienced legal researchers.7

They make fascinating reading and show how entry to socio-legal studies was often serendipitous: a chance relationship with an established scholar was often very important.

The report draws upon a number of different pieces of evidence to illustrate the current lack of capacity. To begin with, it notes that the

number of applications to the ESRC in the field of socio-legal studies has remained consistently low and there now appears to be a downward trend. Second, funders report on the lack of interest in tenders for socio-legal research. Third, there appears to be a lack of interest in empirical legal research in general within the socio-legal community. The Socio-Legal Studies Association, which now has about 400 members, produces a

directory of members' interests, yet few record an interest in empirical legal research in their profiles. Moreover, the annual conferences of the

Association, which provide perhaps the best barometer of the current state of scholarship in socio-legal studies, 'demonstrate a preponderance of

4 Genn et al., op. cit., n. 1, p. 1. 5 id., p. 3. 6 id., p. 13. 7 id., pp. 16-26.

268



purely theoretical and textual analysis rather than theoretically informed

empirical legal research.'8 This lack of capacity is noticeable in all parts of these islands. An obvious

lack was witnessed recently in Northern Ireland shortly after the setting up the NI Legal Service Commission.9 It issued a research brief to a number of experienced researchers to carry out a survey of legal need in Northern Ireland but it received only one response and none from any legal or social

policy academics.10 A more important example of the lack of empirical capacity relates to the current 'war on terror'. Following 9/11, 7/7, and 21/7, there is a very real need for legal scholars to be monitoring the use and abuse of anti-terrorism legislation. All the extensive empirical evidence collected

during the thirty years of conflict in Northern Ireland has shown that the use of emergency powers can sustain and maintain the problem11 and there is

already evidence that the new anti-terrorism laws are creating widespread anger within the Muslim community which may encourage more violence.12

While there has been an expansion in 'terrorism studies', as far as I am aware, there are few socio-legal scholars doing the work on the streets collecting and

collating the information from lawyers, community activists, and individuals. The capacity problem is unlikely to improve in the near future. In the

2006 ESRC recognition exercise, which assesses whether departments provide the appropriate training and support for ESRC funded doctoral students, very few outlets in socio-legal studies applied for recognition, indeed, noticeable absences included some of the major centres of socio legal studies. Adler concludes that:

particularly where empirical socio-legal research is carried out in law schools, the link between research and scholarship, on the one hand, and postgraduate training, on the other, is poorly developed.13

The socio-legal panel recommended that four of the twelve outlets should be given full recognition

- a success rate of only 33 per cent. Adler commented:

Most of the socio-legal outlets that failed to obtain recognition were law schools which lacked a 'critical mass' of socio-legal researchers or were

unable to access advanced training in research methods that may well have been available elsewhere in the institution.14

8 id., p. 9. 9 This was established in 2003 for the purpose of 'securing (within the resources made

available, and priorities set...) that individuals have access to civil legal services that effectively meets their needs, and promoting the availability to individuals of such services': Access to Justice (NI) Order 2003.

10 NI Legal Services Commission, Minutes of a meeting held on 5 December 2004, at

. 11 See, for example, Committee on the Administration of Justice (CAJ), No Emergency,

No Emergency Law (1995). 12 See: F. Ansari, British Anti-Terrorism: A Modern Day Witch-Hunt (2006). 13 Adler, op. cit., n. 3, p. 6. 14 id., p. 7.

269



The report suggests that there are a number of interacting factors which go to explain the lack of capacity. The imperative of all law schools is to

produce skilled doctrinal lawyers. The requirements of professional practice place very real constraints on the undergraduate curriculum and the type of staff who can be recruited. The report suggests that there is little or no room for research training courses similar to those in other social sciences and

rarely are law undergraduates required to complete a dissertation. Even if

they do one, it is unlikely to involve empirical research. There is, therefore, an absence of scholars who are competent to supervise empirical work and, in any event, law postgraduates, who have been taught little or nothing about

empirical research, are naturally drawn to doctrinal work. Hence there is 'an almost inevitable pattern of self-replication'.15

Another very important factor which the report discusses at some length is the culture of legal scholarship. It suggests that it is a culture characterized

by the lone researcher who is not accustomed to working as part of a team, and law schools themselves have traditionally been physically and

intellectually isolated from colleagues in the social sciences. Within this

culture, the dominant emphasis is on 'doctrine and normative questions in

legal scholarship' and this has directed 'the energy of many legal academics more towards shaping legal reasoning and rather less toward influencing policy and practice.'16 Textual analysis and the quick production of journal articles and legal textbooks has therefore characterized the scholarship. Professor Hadden, in a submission to the Inquiry, captures the influence of

legal culture well when he notes:

Most researchers who have come through law schools have been trained to

look for and analyse the principles - the ratio decidendi - underlying judicial

decisions in difficult or borderline cases at appeal level rather than their impact in run-of-the mill cases. When they embark on research projects they typically concentrate on these theoretical and normative issues and find it difficult to see

how empirical survey work will assist them.17

Adler, in his analysis of the problem, suggests that it is a structural issue linked to market forces. Most socio-legal researchers are located in law

schools, and law schools lack an incentive to develop postgraduate training in socio-legal studies. As he puts it:

The costs are too high and the rewards too low when compared with the 'rich pickings' that can result from attracting overseas students to take taught

Master's courses on subjects that will enhance students' professional careers.18

In short, the market place discourages this type of scholarship.

15 Genn et al., op. cit., n. 2, p. 29. 16 id., p. 31. 17 id. 18 Adler, op. cit., n. 3, p. 11.

270



The report suggests that the lack of capacity in social science departments has different roots. The main problem suggested is that the study of law and

legal phenomena has never been a major focus of social science scholars and there is some evidence that it is becoming less so because of the decline in certain subjects, such as social policy and anthropology. Social science undergraduates know little or nothing about the law and legal institutions, partly because of a shift in the substantive interests within the social sciences. Professor Fielding, in another submission to the Inquiry, describes it in the following way:

Younger social scientists seem to lack the interest in the critical matters of social structure, power and social class that lead one very quickly to the law as a major element in constituting society as it is. Sociology has turned from

matters of production to matters of consumption, For example, a great deal of research attention is now given to how people use mobile telephones. If a

previous generation had had those devices, the issue would have been on how

they were socially distributed, Now the issue is how they are decorated.19

The report also identifies a number of external factors which have con tributed to the lack of capacity. One crucial factor has been the lack of coordinated and sustained investment in research in the non-criminal law field. Unlike empirical work in criminal law and justice, where the Home Office has had, since the early 1970s, a large and relatively stable budget to fund research, there has been no comparable government investment in the civil law. There has been no ring-fenced funding

-

apart from the Nuffield Foundation Access to Justice programme

-

and legal researchers interested in civil law and justice compete with other disciplines for research grants from funding bodies. As a consequence, there has been nothing to encourage a cohort of academics to focus on this area. Associated with this lack of

investment, there is no centrally maintained basic administrative data on civil justice matters in contrast to the numerous databases which are now available on crime, policing, and criminal justice.

The Inquiry team make two broad sets of recommendations to overcome the capacity problem. First, it recommended a wide range of imaginative bursaries, fellowships, and grants to encourage and support empirical socio

legal research. The proposals include research leave and undergraduate empirical legal studies bursaries, post-doctoral and empirical legal research

fellowships, postgraduate empirical legal research studentships, and dedicated grants for short courses. Developing the necessary funding poses a significant challenge but it is suggested that it can be met by individual funders such as the ESRC, AHRC and charitable funders either acting alone or in partnership.20

The second broad set of recommendations is addressed at stakeholders: Vice-Chancellors, heads of law and social science departments. Here the

19 Genn et al, n. 1, p. 33. 20 id., pp. 39^2.

271



language in which the proposals are couched is more hesitant and deferen tial. It is suggested that 'VCs might view the creation and support of

expertise as a long term strategic investment'. Heads of law departments, who wish to foster a centre of excellence in empirical legal research, 'might be encouraged to consider whether offering an option on law in society ...

might be useful', 'may wish to foster a dialogue abut how to ensure researchers' workloads can take account of their research', 'may wish to consider how to stimulate and encourage staff to be more active in applying for research funding', 'may want to consider how to shift the balance towards a greater degree of research income', 'may wish to consider collaborative

teaching arrangements with social science departments', and 'some law schools may wish seriously to consider whether they want to become a centre of excellence in fostering empirical legal research'21 (italics added). In only one place does the language get more assertive:

Heads of law department are in a position to provide leadership in encouraging the inclusion in the undergraduate curriculum of modules on empirical legal

methods, in positively supporting the penetration of empirical legal material into the reading for core and optional courses, and in facilitating the develop

ment of courses and research dissertation options that would encourage students to adopt a more contextual perspective to their study of law.22

Adler puts forward five proposals to deal with the problem, some of which are similar to those put forward by the Inquiry. First, a competition should be set up in which established socio-legal researchers would compete for a special quota of five or six ESRC awards each year. This would

provide, over a five-year period, some 25-30 trained socio-legal researchers. Second, the ESRC itself should provide subject specific training in research

methods. Third, law schools should be encouraged to contribute to the

training of socio-legal researchers by collaborating with other areas and

disciplines. A quota of awards could be allocated to recognized training programmes across law and another social science discipline. Fourth, CASE awards, without the requirement for a dedicated postgraduate training programme, could be introduced to encourage better links between law schools and outside organizations. Fifth, a new post-doctoral fellowship scheme could be established in which the fellowship was linked to a teaching

post.

Overall, the Inquiry team have done a great service to the socio-legal community to identity and elaborate on the nature of the problem and in

making a number of recommendations to create a 'critical mass' of empirical socio-legal researchers. I will now turn to the one lacuna in the report, the lack of any information on law's expansion.

21 id., pp. 43-44. 22 id., p. 44.

272



LAW'S EXPANSION

At the outset, it must be pointed out that it is a little ironic, for a report investigating the empirical capacity of socio-legal studies to conduct research into all aspects of the law, that it provides no data on what is happening to law in the real world. Professor Richardson, in a foreword to the report,

points out; 'society spends more time "doing law" and law gets involved in more and more aspects of our lives'.23 Yet, the report itself does not provide any data on how law is getting involved in 'more and more aspects of our lives'. It is therefore illustrative to consider just two areas: the growth in trained legal personnel and the increase in the volume of statute law.

The growth of the profession has been phenomenal. In 1974 there were

28,737 solicitors holding practising certificates24 compared with 104,543 in 200625 - an increase of some 236 per cent. In 1970 there were 2,518 practising barristers. By 2006 the number of barristers had expanded to

14,000 - an increase of 456 per cent.26 The growth of the Bar has therefore

been, proportionately, much greater than the number of solicitors. Another

way of looking at the figures is in relationship to the population. If the two

professions are added together the number of lawyers per head has increased from 6 per 10,000 of the population in the early 1970s to 22 per 10,000 in 2006.27 By way of comparison, in the same period the number of police officers in England and Wales has increased slightly from 22 to just over 26 per 10,000 of the population.

Similar increases can be seen in law schools both in terms of the number of staff and the number of graduates produced each year. In 1966 it is estimated that there were 614 full-time academics in just 25 law schools.28

By 2004/2005 the number had increased to 3,845 and the number of institutions with students studying law had grown to 104.29 As regards students, in 1938 there were a mere 1,500 law students in the United

Kingdom. By 2004/2005, this figure had grown to 62,730 undergraduates and 23,925 postgraduates.30 The composition of both staff and students has

23 id., p. iii. 24 See Law Society, Trends in the Solicitors

'

Profession, Annual Statistical Report 2004

(2005) at 6. 25 See Law Society, Trends in the Solicitors

'

Profession, Annual Statistical Report 2006

(2007) at 11. 26 Law List, 1970 1980 and The Bar Council, . 27 The legal profession is well represented in Parliament. In 1987 there were 88 solicitors

and barristers in the House of Commons forming some 14 per cent of all MPs. They currently form 11.7 per cent of all MPs. Interestingly, the number of barristers has been

steadily declining but the number of solicitors becoming elected has risen. 28 J. Wilson, A First Survey of University Education in the United Kingdom' (1965

1966) 9 J. of the Society of Public Teachers of Law 1, at 26. 29 HESA figures 2005/2006, personal communication. 30 HESA, at .

273



changed radically in terms of gender balance, social class, ethnicity, nationality, and social composition and no one can dispute that the teaching community has been globalized.31

The growth in the volume of statute law has also been considerable. Since

coming to power in 1997 New Labour have introduced over 400 Acts of Parliament containing over 23,000 sections. About 14 per cent of the total acts passed have dealt principally with law and order issues including policing and criminal justice. In addition, 31,790 Statutory Instruments have been made by government departments and United Kingdom authorities in the period. This works out at about two for every hour New Labour have been in power. While more acts were enacted in previous periods, they were shorter. For example, in an equivalent-length period, 1931 to 1940, over 500 acts were passed but they contained under 5,000 sections. The bound volumes occupy less than two feet of shelf space compared with over five feet for statutes passed under New Labour.

This very selective picture suggests that law is indeed playing an increas

ing role in the social ordering of modern society - a shift which would deserve

an empirical study. More and more aspects of our lives are being subject to legal regulation or restraint. The need for high quality and rigorous empirical research to investigate the form, substance, and operation of the law in

modern society could not be greater. At the same time, it is clear that legally trained personnel are playing an expanding role in modern society and more research is needed to understand not only the work they do but to analyse the

impact that legal training and thinking may have on different areas of life.

FUTURE PROSPECTS FOR EMPIRICAL SOCIO-LEGAL RESEARCH

In this final section of the paper, I wish to develop two arguments to suggest that the development of a critical mass of socio-legal research is likely to be difficult to achieve. First, the culture of existing legal scholarship is very entrenched and would require a fundamental shift in ontological and epistemo logical assumptions. Second, the changing political economy of higher education is likely to have far reaching and unpredictable implications.32

31 P. Thomas, 'Legal education: Then and Now' (2006) The Law Teacher 239-53. But how far these personnel changes have transformed the working environment is open to debate. In many of the older law schools, oak-cladded walls lined with pictures of eminent white men and the Queen are still common. The creation of a neutral

working environment for women as well as those from other cultures does not appear to have been a top priority. Moreover, one still hears stories that there has been little

change in the territorial imperative of the senior common room where seats are still

perceived to be the preserve of white senior male members of the department and are not to be used by others.

32 See P. Hillyard and J. Sim, 'The Political Economy of Socio-Legal Research' in

Socio-Legal Studies, ed. P. Thomas (1997) 45-75.

274



The report notes how legal scholarship is characterized by the lone researcher undertaking close textual analysis of legal material. But it does not explore the ways in which this form of research is very different from the research carried out by social scientists. Within the social sciences, the focus of research is on the use of either deductive or inductive methods to explain or understand some selected social phenomena. The researcher is perceived either as independent and objective or intimately part of the construction of knowledge. In relation to the latter, the crucial characteristic of the researchers is that they are trained to reflect on the extent to which their insider/outsider position affects their understanding of the phenomenon

under study. In contrast, the aim of so much legal scholarship is to influence

legal reasoning and produce clarity using a self-referential system. The aim is not to further the understanding of the phenomena of law, legal institutions or processes using a range of quantitative and qualitative research

methodologies. In the past, doctrinal research has dominated the type of research con

ducted in law schools but partly because of the RAE and the greater emphasis on research, there has been a transformation in the type of

scholarship produced by legal scholars. It now includes critical legal theory, sociology of law, feminist theory, queer theory, law and literature, and socio

legal studies, forming a rich quilt of new scholarship. However, there are two

important characteristics of much of this new work. First, it is still based on textual analysis focusing either on an existing body of scholarship or legal

material. Second, it draws heavily on postmodern/poststructuralist ideas and concepts. Foucault's footprints are to be found over so much of the literature. These characteristics are not accidental. They have a strong materiality in the culture of traditional legal scholarship with its emphasis on textual analysis and doctrinal and normative questions. In effect, legal scholars have not had to make a major transition in their training or their thinking. A further advantage of this form of scholarship is that there is no need to make

judgements about the reliability or validity of data in the absence of any rules to judge one interpretation over another. Moreover, the perspective does not require any judgements on moral and political issues. We have lost, as

Gillian Rose has pointed out, 'all sureness of political discrimination'.33 Postmodernism/poststructuralism is, therefore, convenient, comfortable, and fits alongside traditional legal scholarship. The comfort zone provided by this framework and perspective will make it even more difficult, I suggest, to

encourage legal scholars to take up empirical socio-legal work. It will

require a fundamental shift in the assumptions at the heart of legal training. Much of this new form of scholarship is closer to the work carried out in

the humanities and it may be that in future closer links will be made between law and humanities rather than with the social sciences. Indeed, Bradley has

33 G. Rose, Dialectics of Nihilism: Post-Structuralism and Law (1984) 337.

275



argued that law and literature should be part of the undergraduate syllabus in order to subvert the narrow vocational perspective of law students and to

challenge the views stemming from their narrow backgrounds. It would, he argues, introduce them to different ideas and cultures, promote imagination, and provide them with a different way of thinking about the world.

Moreover, it would bring a little passion into liberal legal education and

provide the space to deal with questions about morality and politics which, he notes, are at the heart of law.34

POLITICAL ECONOMY

The other reason why it might be difficult to increase the capacity of

empirical socio-legal research relates to the political economy of higher education. Apart from a brief reference in the report to the RAE, other

aspects of the changes impacting on higher education - the commodification

and privatization of knowledge, the increased marketization and the new

managerialism, and the associated displacement of academics in university decision making

- are not discussed. Yet there is now an extensive discus sion within the international legal community around the possible implications for both research and teaching of these changes.35

The commodification and privatization of knowledge is increasingly seeping into all areas of university life. As Collier has expressed it, there is an explicit redirection, experienced at all levels of the institution, towards an intensified emphasis on the capitalization and exploitation of learning and

'knowledge practices'.36 The imperative and the opportunities to make money vary in different disciplines. In the social sciences and law where there is no obvious product which can be commercialized, academics are

encouraged to be more relevant to the needs of business and to raise more research money. This latter imperative may, however, help boost empirical legal research if heads of law schools allow for 'buy outs' and are flexible

with teaching loads. With full-economic costing, there is now no economic reason not to allow for these developments.

34 A. Bradney, 'An Educational Ambition for "Law and Literature"' (2000) 7 International J. of the Legal Profession 343-55.

35 For an excellent overview of these changes, see R. Collier, 'The Liberal Law School, the Restructured University and the Paradox of Socio-Legal Studies' (2005) 68

Modern Law Rev. 475. This is a review article of A. Bradney, Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (2003). For the

way political economy has adversely impacted on criminology, see P. Hillyard et al.,

'Leaving a "Stain upon the Silence": Contemporary Criminology and the Politics of Dissent' (2004) 44 Brit. J. ofCrim. 369-90; S. Tombs and D. Whyte, 'Scrutinizing the Powerful: Crime, Contemporary Political Economy and Critical Social Research, in Unmasking the Crimes of the Powerful, eds. S. Tombs and D. Whyte (2003).

36 Collier, id., p. 478.

276



The marketization of higher education received increased impetus from the landmark White Paper published in early 2003.37 Research, it argued,

must be 'financially sustainable' and universities must demonstrate that they

are operating 'sustainable businesses'. The message was loud and clear. Universities had to rely less on state funding and more on income from students, businesses, and exploitable knowledge.38 In such an environment, law schools are going to be even less inclined to support socio-legal scholarship because it is unlikely to produce good income streams compared

with, for example, as Adler has pointed out, postgraduate courses in inter national professional legal education. These demands are already influencing decisions about the type of staff required for these developments with 'all the related implications that this has for recruitment and retention strategies and school cultures'.39

The dynamics of the market may force departments to take a more radical stance in the light of the threat now posed by private consultancy firms. Over the last few years the government has turned increasingly to these firms rather than universities to carry out research. This is explained by two factors. First, private consultancy firms are in a much stronger position to

respond quickly and effectively to tenders than university research centres. Second, the government can impose much tighter controls over the owner

ship of the work carried out, and in any event, private consultants are far less

likely to resist attempts to cherry pick the findings as it may affect their future tendering prospects. To challenge the power of private consultants, some departments may therefore follow the market and establish research

companies to replace research centres. This may increase the amount of

empirical social research but it is unlikely that it will be either independent or critical.

At the moment law schools, because of the high demand from home and overseas students, have relatively healthy income streams compared with

many other subjects. But this could change suddenly. There is already an over-supply of law graduates.40 This may lead to demands from within the student body for a broader law school curriculum which could include research methods and other social science subjects so that law graduates

would be more marketable. Some of the more enterprising law schools may offer students the option to intercalate to obtain an Honours BSc as well as a

37 DES, The Future of Higher Education (2003; Cm. 5735). 38 For an analysis of its focus, proposals, and implications for socio-legal studies, see L.

Bibbings, 'The Future of Higher Education: "Sustainable Research Businesses" and

"Exploitable Knowledge"' (2003) 40 Socio-Legal Newsletter 1. 39 Collier, op. cit., n. 35, p. 490. 40 For example, the principal mechanism that the Law Society appears to use to control

supply at the moment is to warn law students that law is a highly competitive marketplace and that obtaining a LPC may not guarantee them a training contract. See

.

277



professional legal qualification.41 What happens to professional legal educa tion more generally in universities is open to question. It is possible that some private company will design and market all the modules for the

professional training, which could pose a real threat to law schools. Whether such developments would encourage more empirical research because of the

funding streams or discourage it because of the need to do other activities to survive is all a matter of conjecture.

The third development - the increased managerialism

- is already having a profound impact on the way academics work. Following the restructuring of many universities, with the abolition of faculties and the creation of large schools, the role of academics in the running of universities has been

substantially reduced while the power and influence of managers has increased. The new managerialism, however, has not only affected universi ties but all walks of public life.42 It has, as Stuart Hall has argued, replaced 'professional judgment and control by the wholesale importation of micro

management practices of audit, inspection, monitoring, efficiency and value

for-money'.43 It is now very difficult for academics to articulate public roles or public interest objectives as they have been increasingly displaced by an 'army of managers' who 'spread a climate favourable to "entrepreneurial ism".' In such a context, Hall argues, everybody becomes their own kind of

'manager' and 'the market and market criteria become entrenched as the modus operandi of "governance" and institutional life'.44 The subtlety of the

change is that it is slowly altering the culture of university life by changing the practices rather than changing minds. It is also changing wider cultural values to produce a new 'habitus' in which a new common sense embraces the habits and practices which 'the "free market", and consumer focus

conception of "governance" requires'.45

Tony Bradney, in a rigorously researched and highly readable book, paddles against the tide of current scholarship which suggests that law schools are being radically transformed by these developments.46 He argues that life in law schools is infinitely better than in the past, irrespective of race, sexuality, class background, and gender. While much is still to be done, if the ideal of a liberal education is supported, he argues, it is possible to

41 For example, the opportunity to intercalate is already offered to medical students in

Queen's University. See . 42 Managerial discourses are now even used in the planning of murders. A babycare tycoon

who tried to hire a hitman recently to kill her ex-partner had drawn up a blueprint including the following headings: 'Background, Goals, Strategy Deliverables, Briefing and Timeline' thelondonpaper 1 March 2007, at

make further advances notwithstanding the hostile political climate. He draws on Foucault's theoretical perspective and the notion of resistance to

power to support his argument. He notes: 'notions of liberal education can

only flourish in the present era if the study of post-modernism flourishes'

(italics added).47 It is an appealing argument and we can all concur with the depiction of academic life as 'disciplinary' as we fill in our hundredth prior approval expenditure form, complete another round of appraisals, type up another postgraduate progress form, record our holiday plans, make guesses at how much time we devoted to particular tasks, deal with our thirtieth email of the day, and watch the pile of paperwork reach new heights on our office floors. But the problem I have with Bradney's argument lies in his

adoption of a postmodern rather than a political economy perspective. It is not only a question of being unable to resist the power of the market forces which have been unleashed on higher education, but the new practices are

transforming the wider cultural values of scholarship. Hesitant appeals to heads of law schools to take steps to encourage empirical research are

unlikely to succeed in the face of mounting internal and external pressures and the very real changes that are taking place in the culture of university life.

CONCLUSION

The Inquiry has carried out an important service for the socio-legal community. Their report needs to be read by everyone concerned with the future of discipline. Few would disagree that as a society we need the

capacity to carry out high-quality rigorous empirical research not only to inform policy makers but, more importantly, to further our understanding of the role of law and legal institutions in modern society. How all the major forces facing higher education will impact on the future of empirical socio legal research is difficult to predict. I have argued that a political economy

perspective points to a much more pessimistic scenario than one based on

postmodernism. The space for critical socio-legal scholarship which chal

lenges the status quo is steadily been restricted, individualism is replacing a sense of collegiality, and working lives are being transformed to meet the new demands of managerialism and market pressures. Hopefully, this

Inquiry will not only prompt further debate about how to deal with the

capacity problem but it will serve as a platform to raise broader questions about the type of theory the socio-legal community adopts, the type of research they conduct, and their role and responsibility in an increasingly unjust social order underpinned by law's advancing empire.

47 id., p. 47.

279



Article Contentsp. 266p. 267p. 268p. 269p. 270p. 271p. 272p. 273p. 274p. 275p. 276p. 277p. 278p. 279

Issue Table of ContentsJournal of Law and Society, Vol. 34, No. 2 (Jun., 2007), pp. 163-294Front MatterGoverning Genetic Databases: Challenges Facing Research Regulation and Practice [pp. 163-189]Researching and Theorizing the Processes of Professional Identity Formation [pp. 190-217]The Embedded Nature of Rural Legal Services: Sustaining Service Provision in Wales [pp. 218-243]Public (Interest) or Private (Gain)? The Curious Case of Network Rail's Status [pp. 244-265]Law's Empire: Socio-Legal Empirical Research in the Twenty-First Century [pp. 266-279]Book ReviewsReview: untitled [pp. 280-284]Review: untitled [pp. 285-289]

Books Received [pp. 290-293]Back Matter

Date post:	10-Jan-2016
Category:	Documents
Upload:	ankit-yadav
View:	27 times
Download:	0 times

Socio Empirical Legal Research

Documents