Some Thoughts on Methodology (with Joe Tomlinson)
Joe Tomlinson and I are finalizing an edited collection on methodology in public law. Here are some thoughts…
Lawyers are notorious amongst scholars of the humanities and social sciences for failing to engage in detailed analysis of methodology. This perception is justified. As lawyers often – and in some cases exclusively – write to be read by aspiring and practicing lawyers (including judges), there is no need to discuss methodological matters. The legal community of English-speaking common lawyers has its own understandings of what makes for sound legal argumentation and, as these understandings having been inculcated in members of the community in their law studies, little would be gained by spending precious time and space elaborating upon them in scholarly work.
Increasingly, however, lawyers are coming under pressure to be more open about methodology. In part, the pressure results from the increasing sophistication and ambition of legal scholarship. Where lawyers were writing to develop arguments about how other participants in the legal community should develop the law, shared understandings about methodology could safely be taken for granted: the ultimate question was “would a judge find this convincing?” Instinct and experience allowed lawyers to answer this ultimate question.
But legal scholarship is, more and more, directed at other scholars and, sometimes, scholars in other fields. Shared understandings about methodology can no longer be taken for granted. Indeed, a scholar proposing a particular approach to a problem might well meet with questions such as, “Why should I care?” or “Why should I agree with you?” Persuasive answers to such questions often require some discussion of methodology. Even if much legal scholarship is still directed at achieving practical change in the legal community, even the scholars engaged in such work will find themselves being asked these questions. For when questions begin to be posed – by examiners of doctoral theses, peer reviewers, editors at publishing houses, colleagues, and students – they create expectations about the norms of legal scholarship: it would not be fair to insist on methodological rigour from one doctoral student and let another pass based on unarticulated shared understandings about methodology. Even successful authors of widely read treatises might therefore find themselves asked difficult questions about methodological approaches.
It is difficult to be certain about why legal scholarship has become increasingly sophisticated and ambitious. But there are some obvious contributing factors.
First, a doctoral degree is now a de facto prerequisite for an academic appointment in common law jurisdictions. Typically, the degree can only be awarded if the author of the doctoral thesis has made a significant contribution to knowledge in a particular domain. It is much easier to satisfy this criterion with a more sophisticated and ambitious thesis. And having started out one’s academic career with a sophisticated and ambitious thesis, one will typically attempt to continue in the same vein.
Second, access to research funding is a marker of professional success. Winning research funding increases the status both of members of law faculties or departments and the faculty/department as a whole. More importantly, allows researchers to pursue more ambitious work than they would otherwise be able to. But research funding is, mostly, distributed by interdisciplinary panels of which the legal members will be a minority (if they are present at all). Sophistication and ambition go a long way to writing a strong funding application.
Third, in many countries, funding of law faculties or departments is tied to the production of high-quality, impactful research. “Impact” and “quality” are typically defined in broad terms and interpreted by interdisciplinary panels. Traditional legal scholarship can certainly qualify as impactful and of high quality, but in terms of the “quality” metric in particular it is easier to make the case for a high score in respect of scholarship which is self-consciously sophisticated and ambitious.
Fourth, the sheer number of legal scholars has increased dramatically, as more and more universities around the world have opened law faculties. (This also has led to a dramatic increase in the number of legal scholars who have doctoral degrees.) This provokes competition, both in terms of upward mobility (moving from an institution with less desirable terms and conditions to one with better terms and conditions) and publication. With more legal scholars writing articles (in part because they will fare poorly in research assessment exercises if they do not), law journals have more submissions to choose from. Sophistication and ambition are powerful tools both in the hunt for more desirable jobs and accessing high-quality publication outlets.
Fifth, the increasing sophistication and ambition of legal scholarship makes for a clearer divide between legal scholarship and legal practice. A young lawyer hesitating between the academy and legal practice faces a fairly stark choice between the increasing sophistication and ambition of academic cloisters and the practical, problem-solving role of a practicing lawyer. Over time, the result is that those interested in producing sophisticated and ambitious scholarship self-select into the academy, with the more practically minded tending to practice. In our view, this is not necessarily a good thing – but it is nonetheless a thing.
Notice, lastly, that all of the above factors have a self-reinforcing quality, as they alter expectations about legal scholarship. For instance, the more law faculties or departments are composed of the scholarly sophisticated and ambitious, the more they will rend to reproduce these tendencies over time: all things being equal, legal academics will hire colleagues who share similar interests. Similarly, if submissions to funding rounds, research assessment exercises and publishers are increasingly sophisticated and ambitious, increasingly sophisticated and ambitious scholarship will come to be expected by those bodies. And the starker the divide between academic lawyers and practitioners, the more academic lawyers will be expected to conform to the archetype of the academic lawyer.
If nothing else, our analysis suggests that academic sophistication and ambition are here to stay. And even if our analysis is wrong or overblown, it remains the case that being a successful academic lawyer today – as a doctoral student, job candidate, funding applicant and so on – requires more attention than it did before to methodology. Attention to methodology is important in order to be successful in hunting for jobs, funding and publications.
To these pragmatic considerations can be added principled justifications for taking methodology seriously. At root, methodology speaks to how we know what we know (or what we think we know). There is no downside to learning about methodology and considering how exactly the author of an academic endeavour achieves its objective—save for the risk we may become too distracted by the specifics of methodology. And there is significant upside: deliberation on methodology might prompt work which is more careful and sophisticated, even in relatively traditional areas of scholarship. It may also provide new ways to understand and analyse questions. We suggest, therefore, that deliberating on how we conduct legal research can generate valuable insights about the approaches we take to producing scholarly work and may end up enhancing the quality of our work.
This content has been updated on February 10, 2022 at 22:55.