Harrington, Yngvesson. Interpretive Sociolegal Research. 1990

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Interpretive Sociolegal ResearchChristine B. Harrington and Barbara Yngvesson

A major challenge for scholars seeking new directions in sociolegalresearch 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 thatassimilate its methods, goals, and results to earlier approaches.' Such ef-forts, aimed at comparison and clarification, tend to "domesticate" thenew,2 or in Boa Santos's words "doubly institutionalize" a developing proj-ect by reading the order of a conventional analysis into the emergent orderappearing in the interstices of new scholarly work.3 In this essay we focuson interpretivism as a developing project in sociolegal research. In particu-lar, we discuss three aspects of interpretive research that are at the centerof current debates in sociolegal theory: meaning construction and the dy-namics of power, legal ideology, and knowledge as politics. Our discussionfocuses on different readings of ideology, on different understandings ofpower, and on the politics of interpretive research connected with thesereadings. To illuminate the struggles over these points and at the sametime illustrate the process of domestication, we begin with a recent paperby David Trubek and John Esser, "'Critical Empiricism' in AmericanLegal 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 YorkUniversity. Ph.D. 1982, University of Wisconsin, Madison. Barbara Yngvesson isprofessor of anthropology at Hampshire College. Ph.D. 1970, University of California,Berkeley.

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. Id3. 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 ofdouble institutionalization. See Bohannan, "The Differing Realms of the Law," in L. 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 135

136 LAW AND SOCIAL INQUIRYthat provides a basis for our broader discussion of interpretive work in thesecond half of this essay.

I. "CRITICAL EMPIRICISM" AND SCIENCE

Trubek and Esser focus on the tension between "empiricism" 5 andcritical research, using the wofk of the Amherst Seminar on Legal Ideologyand Legal Processes to discuss this tension. They describe the work of theseminar as a project in "critical empiricism" and draw on published workby members of this group to explore how the interpretive turn in recentsociolegal work is constrained by a continued adherence to the scientifictradition-a tradition that values "valid descriptions of the world that canbe used instrumentally for whatever purposes individuals find useful. ' 6They call this tradition "universal scientism," maintaining that it demandsthat accounts be more " 'accurate,' more 'theoretical,' less 'narrow,' more'complete,' [and] more 'sociologocial.' "7 Trubek and Esser contrast thisdescription of science with critical research. For them, "critical" impliesnormative concerns, such as the interrogation of legal values (particularlyclaims about the centrality and neutrality of law), and "critical" requires avision 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 andempirical research. On the one hand, interpretive research assumes thatactors 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 thecareful, interpretive analysis of social practices); and it is contingent, tiedto particular social and historical situations. On the other hand, interpre-tive work, according to Trubek and Esser, uses "standard social sciencemethods to provide valid descriptions of the historical and contingentpractices the new paradigm [the interpretive turn] identifies."' 12 If inter-

5. Trubek and Esser interchange the words "empiricism" and "empirical." Empiri-cism, a theory that all knowledge and meaning are dependent on experience, and empiricalresearch, which involves the use of observation for the purpose of providing an account ofthe social world, should be distinguished. Their definition of empirical research seems toincorporate both meanings: "careful observation of the external world for the purpose ofproviding valid descriptions," id. at 39; and see Gary Peller, "The Metaphysics of AmericanLaw," 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. Id. at 25.

Interpretive Sociolegal Research 137

pretive scholars were truly critical, Trubek and Esser argue, they woulddisavow "universal scientism" (a term they associate with social sciencemethodology in general and with neo-Marxist theory and anthropologicalmethod in particular) since, this, too, is a contingent practice.

How might these tensions be resolved? Trubek and Esser suggest thatinterpretive work has "radical implications ... for sociolegal scholars' self-understanding of their own knowledge production" but that only a fewmembers of the Amherst seminar have worked out these implications intheir published writings.' 3 No one in the seminar, they claim, has dis-avowed objectivity and neutrality in order to "advance a particular ideol-ogy" and "explicitly champion" the political agenda of a marginalizedgroup. 14 The implications of this argument are that interpretive workshould be informed by a politics that moves beyond self-consciousness ofits own ideological stance to an awareness of its empirical effects.' 5

To understand Trubek and Esser's "critical empiricism" project andhow it informs their reading of interpretive social science, it is necessary tolook back at an earlier article by David Trubek where he more clearly laysout his understanding of ideology, interpretive work, and transformativepolitics. The premises that inform Trubek and Esser's selection and inter-pretation of particular passages from writings by seminar participants aredeveloped in Trubek's statement of "critical empiricism" as his own proj-ect. Significantly, however, Trubek and Esser use the words of others16 torepresent this perspective and then attribute it more generally to the Am-herst seminar. In attempting to disentangle the meaning, let alone origins,of "critical empiricism," we confront a rather complex task of unravelingwhat at times appear to be the aspirations of Trubek's own project, andcommon ground, or at least overlapping perspectives, on "where the ac-tion is." There are, however, significant differences between our approachto interpretive research 7 and the way Trubek and Esser explain their proj-ect in "critical empiricism." Over the years, some of these differences havealso emerged within the Amherst seminar, as we have struggled with themeaning and implications of an interpretive approach. Indeed, it is in de-bates generated by these differences that we may come to a better under-standing 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 closelylinked to earlier discussions of transformative politics by David Trubek, "Where the ActionIs: 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 inter-pretive research. We are also participants in the Amherst seminar.

138 LAW AND SOCIAL INQUIRY

I1. IDEOLOGY AND PRACTICE IN INTERPRETIVERESEARCH

In what follows, we discuss problems which the concept of "criticalempiricism" poses for understanding the methods and politics of interpre-tive analysis. Our argument is that Trubek and Esser's "critical empiri-cism" project domesticates three aspects of interpretive research: (1) thelocation of ideology in social relations; (2) interpretive analysis and theconstruction 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.

Ideology

We begin by examining Trubek and Esser's discussion of the way ide-ology is understood in the work of the seminar in order to show the influ-ence of Trubek's earlier work on his essay with Esser.' 8 Drawing onstatements by seminar members' 9 Trubek and Esser define ideology as aweb of social meaning, an "accidental congery of images and metaphors" 0that " 'appropriates' the individual so that without self-conscious reflec-tion the actor comes to desire the ends, use the perspectives, and apply therationality that makes up the social fabric."' 2' It involves "implicit schemesof response, disposition, or habit" which are "applied" in changing situa-tions, but which constrain the range of activity that can take place.22 Eventhough ideologies are constraining, they are "open to adaptation" whenactors are confronted with new situations. Change is "especially evident"when ideologies "clash," resulting in confusion, which in turn producesideological transformation. "Practice" and "process," according to Tru-bek and Esser, are the terms used in the seminar for the meeting and clash-ing of ideologies.23

What is striking about Trubek and Esser's account is the degree towhich ideology is disembodied from social relations. Ideologies are "sys-tems of meaning" that people struggle over in an effort to persuade othersto "take on your ideology as their own. ' 24 Ideologies "clash" and "inter-

18. Trubek, 36 Stan. L Rev,. at 592-600. See especially the discussion of ideas as con-stituting 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 statementby 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.


act with one another," 25 and may be "carried back" by those involved inan exchange with equally disembodied (and dichotomized) spheres such as"society" and "law." Ideologies "originate" in spheres such as "the legalsystem" and "the community," they are "brought together" and "workedtogether" in processes such as the handling of disputes, then they are " 're-turned'" to the legal system and the community "in their new form. '26Here, Trubek and Esser cast the critical concepts of interpretive sociolegalresearch into the familiar law and society paradigm: ideology is separatedfrom social relations and is seen as having effects on society. Similarly theirconception of power is close to that found in the legal impact model:"power is the ability to persuade, coerce, or otherwise cause other actors totake on your ideology as their own." 27 Because Trubek and Esser's "criti-cal empiricism" project retains the old division within positivist epistemol-ogy between "ideas" and "action," it insists on a much narrower field ofmeaning for the term "ideology" than is used in contemporary interpretivework.

The view that ideology is separate from social relations also colorsTrubek and Esser's analysis of how structuralist and poststructuralist the-ory has shaped interpretive research. They briefly note the existence ofsome debate and revision within Marxist structuralism. For example, theystate that neo-Marxist theory "loosens the tight structuralist assumption ofa deep and unalterable logic of social laws."'28 However, they remain trou-bled by the presences of a " 'material' account of ideological practice. '29The narrower meaning of ideology they insist on obscures the theoreticaldifferences between structuralist and poststructuralist studies of legal ideol-ogy on the one hand, and conflates neo-Marxist critiques of determinismand orthodox Marxist approaches, on the other. Trubek and Esser col-lapse these different approaches into a common reading of ideology inMarxist theory, one that, in their words, considers ideology "as a relativelystable and definable" set of categories which can be separated from thepolitical and economic institutions it is associated with.30 They continueto associate a "materialist" theory of legal ideology with the "program ofuniversal scientism [which] emphasiz[es] the need to describe the structureof economic and political institutions in order to 'explain' how ideologiesfunction." 3'

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, andthe Transformation of Disputes," 15 Law & Soc'y Rev. 775 (1980-81). However, none ofthis terminology (including the concept of ideology) is used by these two authors.

27. Trubek & Esser, 14 Law & Soc. Inquiry at 20.28. Id. at 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 legalideology is domesticated by the narrow definition of ideology in Trubekand Esser's "critical empiricism" project. For them, disembodied ideolo-gies (images, ideas, consciousness) "constitute" society (social relations)through "practices" that sit "between" these dual spheres.3 2 By their ac-count, neo-Marxist and structuralist approaches are problematic becauseTrubek and Esser insist on separating political and economic structuresfrom ideology." The materialist conception of ideology34 in interpretivework rejects these dualistic ways of framing the sociolegal world, movingaway from the positivist distinction between ideas and experience, consentand coercion, and between subjective and objective "realities."

To speak of the constitutive dimension of ideology is to examine legalideology 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 betweenthe two. In such a world, acts impose ideologies or persuade others to takethem on as "voluntary." 35 Interpretive sociolegal inquiry is based on an

to unpack because here "critical empiricism" lumps complex problems together, such as theconception of structure in interpretive research, the revisions on materialist theory withinthe Marxist tradition, and the ongoing debate within critical legal studies between what thelawyers call "indeterminacy" and "determinacy." It seem clear, however, that Trubek em-braces the indeterminacy position, also fashionable among deconstructionists. From thisangle a "material" or constitutive theory of law is equated with "determinism" and "univer-sal 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 identifymultiple, localized, and molecular forms of both power and resistance" and that unlikeTrubek and Esser's characterization of ideology in Marxist thought, the anthropologicalinfluence in the seminar explains ideology by "contextualizing" it (id. at 30). This morecomplex 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 andConsumer Protection Law," 14 Law & Soc'y Rev. 115 (1979).

34. Generally see Maureen Cain, "The General Practice Lawyer and the Client: To-wards a Radical Conception," 4 Int'l J. Sociology L 7 (1979); Roger Cotterrell, "The Socio-logical 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 Analysisof Law," 19 Law & Soc'y Rev. 11 (1985).

35. A constitutive concept of law differs from the liberal-legal conception in that law isunderstood as having the power to frame politics; see John Brigham & Christine B. Harring-ton, "Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research,"17 Int'l J. Sociology L 41 (1989). Legal processes, doctrine, and institutions shape politicalpossibilities. Recent examples of work on a constitutive approach to law include RobertGordon's study of lawyer's work as ideology views "every legal practice-from drafting acomplaint for simple debt to writing a constitution-[as] mak[ing] a contribution to build-ing a general ideological scheme or political language out of such explaining and rational-izing conceptions" (see Robert W. Gordon, "Legal Thought and Legal Practice in the Age ofAmerican 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


interest in questions about the way law gets separated from material life-from its own role in creating the relations of material life. This questiondraws attention to practices of law that are taken for granted, practicesthat make law appear to stand apart from social relations and to be of adifferent and separate order, rather than a continuous part of socialpractice.

A contemporary example of social theory that challenges these dual-istic representations is Pierre Bourdieu's analysis of "symbolic capital" and"symbolic violence."3 6 These concepts join what are traditionally seen asseparate material and symbolic spheres by linking economic and affectiverelations to explain the exercise of power in domination. Symbolic capitaland symbolic violence create and maintain "a lasting hold over someone"in "euphemized" form. 37 "Symbolic violence is that form of dominationwhich, transcending the opposition usually drawn between sense relationsand power relations, communication and domination, is only exertedthrough 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 somuch undergone as chosen, the violence of credit, confidence, obligation,personal loyalty, hospitality, gifts, gratitude, piety."' 39 Bordieu argues thatanalysis must attend to this "double reality of intrinsically equivoca4 ambigu-ous conduct" and "hold together what holds together in practice" ratherthan creating a "self-mystifying demystification" through the creation ofwhat he terms "a naively dualistic representation of the relationship be-tween practice and ideology." 40

The concept of symbolic violence, which suggests how domination iscreated and maintained through everyday relations, enables us to see theway ideology is produced in relations that are, in turn, ideologically consti-tuted. 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 ofthinking, of making sense of, and thereby of constituting ideologically new and emergentmaterial forms" (see Maureen Cain, "The General Practice Lawyer and the Client: Towardsa Radical Conception," 4 Int'l J. Sociology L 13 (1983)); and John Brigham's research onsocial movements as "constituted in legal terms when they see the world in those terms andorganize themselves accordingly.... Legal forms are evident in the language, purposes, andstrategies of movement activity as practice" (see John Brigham, "Right, Rage, and Remedy:Forms of Law in Political Discourse," 2 Studs. Am Political Development 306 (1987). Also seeChristine B. Harrington, "Regulatory Reform: Creating Gaps and Making Markets," 10Law & Policy 293 (1988), and Christine B. Harrington & Sally Merry, "Ideological Produc-tion: The Making of Community Mediation," 22 Law & Soc'y Rev. 709 (1988). Earliersources 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(1979).

36. Pierre Bourdieu, Outline of a Theory of Practice 179, 191 (Cambridge: CambridgeUniversity 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 ideologyof relational complaints as "garbage" and of property matters as "crime" isreproduced in distinctions drawn by the court clerk between serious andtrivial events, as he negotiates the withdrawal and dismissal of complaintsbrought by citizens. Dismissals reproduce the separate spheres of commu-nity (held together by ongoing ties) and law (a sphere defined in terms ofrights and entitlement), but are carried out through the "gentle violence"of dismissals "chosen" by the citizens themselves in the context of anongoing relation with the court clerk. It is through this relationship thatthe dependence of citizens on the court is created (and the status of theclerk as the appropriate official for handling "garbage" is produced), evenas it empowers citizens as agents who "choose," and empowers the clerk asan official who maintains the boundaries of law.41 In a related argument,Christine Harrington and Sally Merry show how the concept of mediatorneutrality and detachment emerges in diverse practices of selectingmediators who unself-consciously "produce" a nonjudgmental stance intheir approach to handling conflict.42 The mediator selection process be-comes "a site for the ideological production of 'neutrality' in the form of adetached stance," 43 just as the process of handling complaints by the courtclerk becomes a site for the ideological production of "garbage" in theongoing involvement of the clerk with trouble that "won't go away."

These studies point to the differences between an analysis of ideologyas consciousness and an analysis of ideology as practice and suggests thepolitical significance of this move in decentering the role of law. Law asideology is not a sphere from which meanings emerge and to which mean-ings are carried back, and practice is not a process separable from law.Rather, law is found, invented, and made in a variety of locations (media-tion sessions, clerks' hearings, welfare hearings, social movements, lawyers'offices, classrooms), through a variety of practices which are themselves ideo-logical. Key symbols such as "neutrality," "community," "family trouble,""neighborhood disturbance," or "lovers' quarrel" are produced in thesepractices, rather than simply imposed by legal authorities or "brought intocontact with one another" through the agency of legal officials.

Modern mechanisms of power operate by constructing the distinctionbetween ideology and practice, placing ideology "outside" of social rela-tions, and thus creating a two-dimensional world, one part of which ("cul-ture," "the symbolic," "the state," "law") is given and constitutes the

41. Barbara Yngvesson, "Making Law at the Doorway: The Clerk, The Court, andThe Construction of Community in a New England Town," 22 Law & Soc'y Rev. 409(1988).

42. Christine B. Harrington & Sally Merry, "Ideological Production: The Making ofCommunity Mediation," 22 Law & Soc'y Rev. 709 (1988).

43. Id. at 730.


other.44 While the givens may "clash" or "interact," it is difficult to avoida determinist position in this kind of analysis, because it locates the powerof law "outside actuality, outside events, outside time, outside community,outside personhood." 45 Yet the moment when power appears most exter-nal it has "in fact become most internal, most integral and continuously atwork within social and economic practices." 46

In this relational concept of power, 47 officials are seen as participantsin power relations, both as constrainers and the constrained. While offi-cial power is often more studied and even at times more obvious thanpower that is not officially recognized, interpretive analysis of power atwork in everyday practices examines how common-sense understandingsare forged. The authority of official power is produced not simply withinthe legal system but in local interpretive communities where the commonsense of law in society is created. When sites for the production of law areclassified as "low" or "trivial," or when disputes in "lower" courts andmediation 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 extentthat Trubek and Esser's "critical empiricism" project does this, their posi-tion reintroduces the law and society perspective, distancing law from thesites where it is produced, and locating power outside the relational con-texts 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 anthro-pologists which locate culture in "a textual structure" fall into this same problem. Culturetends to be given an "existence or nature apart from ... [its] repeated and yet alwaysdiffering performances. However much cultural text 'finds articulation' in social practices, itis 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 simplybecause 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: ARadical View (London: Macmillan Press, 1974); and Michel Foucault, "The Subject andPower," in H. L. Dreyfus & P. Rabinow, eds., Michel Foucault: Beyond Structuralism andHermeneutics (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 assites of law. See John Brigham, The Cult of the Court (Philadelphia: Temple UniversityPress, 1987), and also see Brigham & Harrington, 17 Int'l J. Sociology L at 46-50 (cited innote 35).

50. The move in recent work to a focus on sites rather than on margins or centers isintended as a move away from assumptions about core and periphery, without losing sightof the power relations that shape meanings in these settings; see Harrington & Merry, 22Law & Soc'y Rev. 709 (cited in note 35). Challenging conventional scholarship that retainslegal hierarchies and expanding the location of law not only decenters the conventionalhierarchy 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 consciousnessdistinct from practice parallels their reading of interpretive method as arealm of science distinct from politics. Anthropological methods are spe-cifically identified by Trubek and Esser as the locus of "universal scien-tism" (a concept they identify with accuracy, objectivity, and an apoliticalstance).51 They provide only minimal discussion of what "anthropologicalprocedures" entail, however, and no discussion of what the interpretivemethod in ethnographic research involves. The superficial discussion ofanthropology as science, and the explicit identification of science with ob-jectivity and universality, not only masks the complexity of the scientificenterprise but obscures the ambiguity and contradiction inherent in an-thropological methods such as participant observation and, specifically, ininterpretive approaches to fieldwork.

Contrast, for example, Trubek and Esser's characterization of anthro-pological procedure as providing "accurate description" and as "ad-vanc[ing] scientific knowledge" 52 with James Clifford's description ofanthropological knowledge as "contingent, the problematic outcome ofintersubjective dialogue, translation, and projection" and interpretive ac-counts as "just one level of allegory."'53 Referring to "the discipline's im-possible attempt to fuse objective and subjective practices, '5 4 Clifford usesMarjorie Shostak's ethnographic study of a !Kung woman55 to illustratethe inherent tension in ethnographic work between scientific discourse

theory-a revival best captured by the "many voices" view of "legal discourse" and theembrace of Richard Rorty's philosophical relativism; see Richard Rorty, Philosophy and theMirror of Nature (Princeton, NJ.: Princeton University Press, 1979), and for an example ofsociolegal work that embraces Rorty's position see Austin Sarat & Susan S. Silbey, "ThePull of the Policy Audience," 10 Law & Policy 97 (1988). For critiques of this position seeAlan 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), andBrigham & Harrington, 17 Int'l.. Sociology L 41. As discussed above, interpretive sociole-gal 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 relationsof material life, see Christine B. Harrington, "Moving from Integrative to Constitutive The-ories of Law: Comment on Itzkowitz," 22 Law & Soc'y Rev. 963 (1988). If we limit theinterpretive project to simply documenting "challenging voices" or the "multi-vocality oflaw," we will indeed fall back into the relativism of "descriptive" legal pluralism-a relativ-ism which depoliticizes law by finding it "everywhere"-and implicitly embraces the politicsof 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 Politics and Poetics of Ethnography 109 (Berkeley: University of CaliforniaPress, 1986) ("Clifford & Marcus, eds., Writing Culture").

54. Id.55. Marjorie Shostak, Nisa: The Life and Words of a !Kung Woman (New York: Ran-

dom House, 1983).


and intersubjective dialogue.5 6 Vincent Crapanzano develops a similartheme in his examination of Clifford Geertz's study of the Balinese cock-fight.57 He illustrates the contradictions in a text that purports to present"the native point of view," yet where the anthropologist's position "be-hind and above the native, hidden but at the top of the hierarchy of un-derstanding"' 58 undercuts the capacity to present a view other than that ofan outsider and (in consequence) the authority to re-present "the Balinesecockfight." In other words, the authority of the anthropologist to portraythe world of others is contingent on dialogue and engagement with theparticular, rather than on distance and generalization.

This issue is central to an understanding of how accounts of the soci-olegal world are produced. As Rosaldo has noted, "[t]he ethnographer, asa positioned subject, can grasp certain ethnographic phenomena betterthan others .... Consider for example, how age, gender, being an out-sider, and association with a neocolonial regime can influence what onelearns."'59 At the same time, Rosaldo describes "routine interpretive pro-cedure" as a methodology in which "ethnographers reposition themselvesas they go about understanding other cultures. One begins with a set ofquestions and subsequently revises them in the course of inquiry. Thus,ethnographers emerge from fieldwork with a different set of questionsthan 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 "ob-jective situation" as outsider,62 and the engagement necessary for reposi-tioning has been fundamental to the methodology of participantobservation from its earliest practice in the work of ethnographers such asMalinowski, Radcliffe-Brown, and Mead,63 and undermines claims thatethnography and natural science have a similar methodological stance.This same tension between distance and engagement is built into all ethno-graphic 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 Ethno-

graphic Description," in Clifford & Marcus, eds., Writing Culture 74 ("Crapanzano, 'Her-mes' Dilemma' "); Clifford Geertz, "Deep Play: Notes on a Balinese Cockfight," in C.Geertz, ed., The Interpretation of 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 theAmerican Ethnological Society 192-93 (Washington: American Ethnological Society,1983).

60. Id. at 182.61. Id. at 183.62. Bourdieu, Outline of a Theory of Practice at 1 (cited in note 36).63. See James Clifford, "On Ethnographic Authority," in J. Clifford, ed., The Predica-

ment of Culture 26 (Cambridge: Harvard University Press, 1988).

146 LAW AND SOCIAL INQUIRYEvans-Pritchard's study of the Nuer 64 and Carol Greenhouse's study ofGeorgia Baptists. 65

Central to this issue, as Rosaldo's discussion of positioning implies, isthe role of power in the production of an ethnographic account. The in-terpretive process, focused on an analysis of the relational nature of powerand the production of ideology in power relations, is itself embedded inthese relations and its product is shaped in this context. In sum, the inter-pretive method is no less dialectical than the product of the method itself.Its authority is contingent on engagement, on a dialogue with others thatis produced in relations of power. The interpretive process resists, by defi-nition, any attempt to locate meaning "outside" these relations in a realmof "objective" science. "66

The Politics of Interpretive Research

This brings us to the question of whether and how interpretive analy-sis of the sociolegal world is a critical activity. As noted above, Trubekand Esser suggest that "a politically self-conscious practice of knowledgeconstruction" 67 involves scholars in work that gives value to victims andintroduces marginal voices in accounts of the sociolegal world.6 Theyclaim 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 seeRenato Rosaldo, "From the Door of His Tent: The Fieldworker and the Inquisitor," inClifford & Marcus, eds., Writing Culture 77, who discusses Evans-Pritchard's relationshipwith the Nuer.

65. Carol J. Greenhouse, Praying for Justice 9-18 (Ithaca, N.Y.: Cornell UniversityPress, 1987). And see Barbara Yngvesson, "Responses to Grievance Behavior: ExtendedCases in a Fishing Community," 3 Am. Ethnologist 353 (1976), for a discussion of the impor-tance of attending to local interpretation and responses for an understanding of acts andevents, 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 Theoryof 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 Politics of Interpretation (Chi-cago: 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 attri-

bute to various members of the seminar (at 41-44). It is clear from their discussion at 44and 45, however, that the approach they endorse is one in which critical work "consciouslyconstruct[s] ... a knowledge, which can be used to advance [the] ... politics" of "a specificmarginalized group" (at 44). They suggest that only in taking such a stance is it possible tomove beyond "partial critique" and "partial adaptation of an interpretist stance" (at 45). Inwhat follows, we challenge this approach to the relationship of knowledge and politics.

69. Id.


short of "a truly critical practice of knowledge construction." 70 Drawingon Sarat and Silbey's work, they distinguish research aimed at a "real im-pact on persons, groups, and institutions in [the] real world" from "a sim-ple process of interpreting meaningful activity in unorthodox locales." 71

We question this instrumental approach to critical research. It is anapproach requiring that the observer become advocate-a stance whichsuggests that interests are given rather than constructed in the interactionwith researchers and others, and also assumes that scholars are those bestqualified to represent these interests. The problem with Trubek andEsser's view of critical research is that it collapses the differences betweenresearcher and subject and thus disempowers both.72 An example of thisis found in Trubek and Esser's support for research that "gives voice andcredibility to those who question, in a fundamental way, state legality, ex-isting 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 "transform-ative" once the "voices" of the "victims" are "voiced" by the researcher?What seems to be happening in this example is that the researcher's author-ity is enhanced by the use of the voices of the "voiceless, '' 74 while thevictims of discrimination are further disempowered by allowing the re-searcher to serve as their spokesperson. Transformation must involvesome sense of empowerment, of agency, and of change in the relative posi-tioning of researcher and subject as well as in a broader field of powerrelations of which they are both a part.

Rather than advocating an appropriation of the "interests" of thosewe study (i.e., appellate litigators, property owners, Supreme Court jus-tices, working class disputants, divorce lawyers, court employees and re-formers, etc.), we believe the implications of the interpretive turn arepotentially more radical. Recognition of the contingency of interpreta-tion, and its location in social practices, has the potential to transform therelationship between researcher and subject in such as way that "indige-nous 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 scien-tific 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 specificset of social conditions (globalization of participatory democracy). Scientific research cancontribute to creating these conditions by "structural inquiry into the number and nature ofsites" 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 Construction of Victims (Baltimore: Johns Hopkins Press, 1987).

74. See Rosaldo's discussion of this issues in "From the Door of His Tent" at 90 (citedin note 64).


even determining. '7 5 A striking example of this shift in relationship is theethnographic film Two Laws, which involves a collaboration betweenWestern filmmakers and native Australians.76 The construction of thefilm in a group process of decision-making involving Australians and Wes-terners, the transformed construction of history that results from this, andthe radical decentering of knowledge and of power implied in the entireproduction, constitute both a powerful political statement and a criticalethnography. Key to this transformation, however, was a "repositioning"of the relation of researcher to subject, since the filmmakers were invited bythe native Australians to represent their history and their law on film.

Work such as this suggests that it is important to distinguish the repo-sitioning of researchers vis-a-vis subjects from the notion that it is possible(or desirable) for researchers to promote the political agenda of those theystudy. Repositioning can occur in a range of ways, from the rephrasing ofquestions in response to engagement with those studied, to the active in-volvement of subjects in defining the research, as in Two Laws. It is in thissense that interpretive work, particularly the new ethnography, is seekingto move from a position in which the distance secured by externality con-demns us "to see all practice as spectacle," 77 to an engagement with whatwe study. This requires self-consciousness about the location of our workin a specific disciplinary practice, with particular subjects, at a specific his-torical moment.

The product of this work is by definition contingent, produced inrelations of power in which researcher and subject are both constrainerand constrained. The politics of interpretive sociolegal research demandattention to power because interpretive work is embedded in socialrelations.

In conclusion, we have a brief comment on the interpretive processinvolved in making sense of interpretive sociolegal research. This work,like that in other sites where sociolegal knowledge is produced, also in-volves the construction of "interests" and "positions." Most specifically,observers must be attentive to power and avoid collapsing creative tensioninto common perspectives in which struggles over meaning, and thus bydefinition the politics of making meanings, are eclipsed.

75. Id. at 45. This approach is best articulated by Marcus & Fischer, in Anthropology asCultural 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 Practice at I (cited in note 36).

Harrington, Yngvesson. Interpretive Sociolegal Research. 1990

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