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American Bar Foundation

Critical Empiricism: [Comment]

Author(s): William C. Whitford
Source: Law & Social Inquiry, Vol. 14, No. 1 (Winter, 1989), pp. 61-67
Published by: Blackwell Publishing on behalf of the American Bar Foundation
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Critical Empiricism
William C. Whitford

Learning and Values

Thereis a fundamental paradoxfor researchthat is traditionally de-
scribedas "empirical." The ostensiblepurposeof this researchis to learn
somethingby observation.Yet, as Trubekand Esseremphasize,observa-
tion cannotbe objectiveor valuefree. Thereare two relatedproblems
that renderall observationinherentlyvalueladen.
Descriptionof the socialworldrequiresthat we groupdiscretephe-
nomenainto categoriesthatwe believe,or aretrainedto believe,describe
significantsocialhappenings.In ourlanguagewe describethesecategories
with a singleword,and cometo thinkof themas a singlephenomenon,
ratherthan the groupingof discretephenomenathat could have been
groupedin someotherway. Thus,we talkof disputes,andwe aretrained
to thinkof a maritalspatand resistanceby an enterpriseto an environ-
mentalprotectionagency'sorderas relatedsocialphenomena.Butwe do
not think of the questionwhetherIvanLendlor MatsWilanderis the
world'sbesttennisplayeras related,becausewe arenot trainedto describe
this as a "dispute."Consistently,
the processby whichthe latterquestion
gets resolvedwe call a "game"ratherthan "disputesprocessing."The
categories we usetodaywerecreatedby ourforebears, andtheycommonly
reflectpreferencesabouthowsocietyshouldbe organized thatwerewidely
sharedin the culturein whichtheywerecreated.In Trubekand Esser's
terminology,the categoriesof socialbehaviorin use todayin empirical
researchare at leastpartlya productof ideologiesthat have been domi-
nant in relevantpopulationsubgroups.'

William C. Whitford is GeorgeH. Young-BascomProfessorof Lawat the University

of Wisconsin-Madison.LL.B. 1964, Yale University.
1. For a fullerdescriptionof what I have elsewherecalled the problemof conceptual-
ism, see Whitford, "LoweredHorizons: ImplementationResearchin a Post-CLSWorld,"
1986 Wis.L Rev.755, 767-72. The argumentI developlaterto justifythe utilityof observa-
tion is a refinementof an argumentfirst stated in that earlierarticle. Id at 769.
© 1989 AmericanBar Foundation 61

A related problem has come to be called the problem of agency,

which is much emphasizedin the Trubek and Esser essay, where it be-
comes the basis of their principalcriticismof the work of the Amherst
group. Even though our thought is to a significantextent imprisonedby
the set of social categorieswe have inherited, we retain the capacityto
imaginenew groupingsof social phenomena. Hence, we retain the capac-
ity to reject traditionalunderstandingsabout who benefits from our ex-
isting socialorder and about the potentialitiesand meansof changingthat
order.2 But these new understandings,acquiredthrough imaginationand
through perception,are in part a function of the valuesand desiresof the
person imaginingand/or perceiving(i.e., the agent). Existingsocial prac-
tices reflect an acceptanceof the idea that individualvalues and desires
can partlydeterminethe understandingsthat person acquiresthrough im-
agination and perception. Thus, in sporting events, as in legal trials, we
seek officials who do not identify emotionallywith either contestant, in
part becausewe fear consciouslybiasedjudgment,but also becausewe un-
derstandthat perceptionis affectedby emotional attachment.3
In sum, all observationis value laden for two very differentreasons.
One reason concerns the value-ladencharacterof the concepts, and ulti-
matelyall language,that we use to describethe social order, and is much
emphasizedby the structuralistphilosophicaltradition. The other reason
stressesthe impossibilityof fully separatingdescriptionfrom evaluation,
and ultimatelycomes from our understandingof the self. Together, as
Trubekand Esseremphasize,these sourcesof nonobjectivityare enough to
invalidatewhat they call "uniformscientism"-the idea so prevalentin
recentWesternculturethat throughuse of the "scientificmethod"we can
learn truths about the nature of human society.
Interestingly,Trubekand Esser'sessaydoes not take what might seem
to many readersto be the next logical step: advocatingabandonmentof
observationas a researchstrategyin the face of its inherentlyvalue-laden
character. What reason do we have to believe that through observation
we can learn anythingthat cannot be learnedfrom analysisof the values
containedin the languageand conceptswe have inheritedand of our own
personalgoals and desires?4It seems clear that Trubek and Esserbelieve

2. These capacitiesare much emphasizedby Coombe in an essayin this issue and are
the sourcesof what she there calls subjectivity.
3. A graphic,and tragic,recent exampleof this common understandingis the official
explanationgiven for the shooting down of an Iranianpassengerairlinerby an American
warshipin the PersianGulf. That explanationattributedthe tragedyto a misreadingof
imageson a radarscreenby Americanservicemenin battle for the first time and biasedby
the emotions of that circumstanceto interpretthe imagesas suggestingan attackon their
ship that was in fact not occurring.
4. Though never with quite the specificitystated in the text, there are critiquesof the
Law & Society movementby other CriticalLegalScholarsthat come close to questioning
the abilityof empiricalresearchto teach anythingnot learnablein other ways. See Kelman,
Critical Empiricism 63

that, in spite of the problems, something can be learned from observa-

tion.5 But their essaydoes not makea positivecase for the utilityof obser-
vation, despite its flaws. I attempt that next.
The foundationof my case for observationis a plea that we acknowl-
edge the experienceof learning. Learning,as I use the term, is the experi-
ence of believingthat one has acquiredan enhancedabilityto describethe
causalrelationshipbetweendifferentevents. Becauselearninginvolves in-
creasedunderstandingof causalrelationships,it implies an abilityto pre-
dict the futurewith greateraccuracy. Predictionis a criticalskill if we are
to be able to exert greatercontrol over our social environment.
The phenomenon of learning, as I have defined it, seems to me to
account for experienceswe have all had. In familylife, we learn behaviors
that will avoid or alternatelystimulate disagreement,depending on our
wants at the moment. Basketballteams learn what offenses seem to work
best against different zone and person-to-persondefenses, respectively.
Lawyerslearn what kinds of statementsto particularappellatejudges are
most likelyto be persuasive.Note that none of these examplesof learning
implies an abilityto predictthe futurewith absolutecertainty,just with a
greaterprobabilityof accuracythan previouslywas possible. Furthermore,
this belief in an enhanced predictive ability is fully compatiblewith an
appreciationthat one's new understandingis only tentative, to be dis-
placedin the futureby other new insights,perhapsfurtherenhancingpre-
dictivecapacityor perhapsmore appropriateto the changedcircumstances
of a new age.
The second step in my justificationof observationis to link observa-
tion to learning. Learningis acquiredin differentways, not all based on
observation. We feel as though we are learningwhen through exerciseof
deductive mental processeswe discover new implicationsof propositions
alreadyaccepted. Use of this analytictechnique appearsto account for
manyof the law reviewarticlesthat professthat if the goal is maximization
of resources,then the legalrule should be x, whereasif the goal is equality
in the distributionof resources,then the rule should be y.6 Other types of
learning experiences can be considered "transformative."Learning is
transformative,as I use the term, when it leads to understandingsabout
the natureof the world that could not be deduced solely from preexisting

"Trashing,"36 Stan.L Rev.293 (1984);White, "FromRealismto CriticalStudies: A Trun-

cated IntellectualHistory,"40 Sw. LJ. 819 (1986).
5. Trubekand Esser,at note 77, very specificallydeny any rejectionof what they call
"investigatorypractices,"which I presumeincludesobservation.Their definitionof "empir-
icism,"text at note 84, seemsto contemplatethat what they call empiricalresearchneed not
include observation,however.
6. E.g., Goetz & Scott, "Principlesof Relational Contracts," 67 Va. L Rev. 1089
7. Sometimeslearningis said to be transformativeonly if the learningresultsin dis-

My case for observationrestson its abilityto aid and abet transforma-

tive learning. There is no doubt that imaginationand speculativethought
are importantand perhapsindispensabletools in acquiringtransformative
learning. Archimedesdiscoveredhis famous principlewhile contemplat-
ing.8 Observationalone would not have sufficed. But observationdid pre-
cede the contemplation, and lent confidence to the product of the
contemplation. Similarly,basketballcoachesobservethe playof their own
and other teams in learningwhat offenseswill work best againstdifferent
defenses. Another example,drawnfrom socialresearchon lawthat will be
familiarto most Americanlegal scholars,is StewartMacaulay'sfamousre-
search on the contractual behavior of businessmen. Macaulay'sdirect
observationof contractualbehavior, as well as his interviewswith busi-
nessmenengagedin contractualtransactions,led him, and laterthe rest of
us, to new understandingsabout the relationshipbetween contract law
and contractualrelations.9
The case I have made for observation rests on acknowledgmentof
mental experiencesI have had, and believe others have had, that I believe
has been useful in enabling me to predict the future more accurately.
There is no way I can prove, accordingto the standardsof validity nor-
mallyprofessedby positivistsocial sciences,that observationhas this util-
ity. The value-ladencharacterof observation,as describedearlier,would
prevent any proof of my case, just as it preventsproof, in that positivistic
sense, of any other propositionabout the social order. But in asking for
acknowledgmentof the experienceof learningthrough observation,I be-
lieve I am not askingfor a leap of faith that is differentin kind from what
is requiredto acceptthe propositionswith which this commentbegancon-
cerning the value-ladencharacterof observation. How do we know that
the goals and desiresof the observerinevitablyaffectthe productof obser-
vation? I believe we accept this proposition because after reflection it
seems an accurateaccount of experience we have all had. My case for
learningand for observationas a source of learningis similarlybased.
Observationis the essential ingredientin what I consider empirical
research. For one who acknowledgesthe utility of observation,what im-
plications are there for the practiceof empiricalresearchif one also ac-
cepts that all observationis value laden? It is possiblefor the researcherto

cardingwhole world views, or ideologies,in favorof others. But I have in mind as "trans-
formative"even little insights as long they are not logicallycompelled from preexisting
knowledge. The second partof this commentdiscusseswhetherlittle insightscan qualifyas
8. Archimedes'principleis that an object submergedin waterdisplacesits volume re-
gardlessof the object'sweight. I was told in my high school physicsclass that Archimedes
arrivedat the insight while in the bathtub,whereuponhe jumpedout, unclothed,and ran
into the street shouting "Eureka,I have it."
9. Macaulay,"Non-contractualRelationsin Business: A PreliminaryStudy," 28 Am.
Soc. Rev. 55 (1963).
Critical Empiricism 65

be self-consciouslyawareof the possibilityof the value-ladencharacterof

her/his work, and perhapseven of some of the valuesthemselves. Aware-
ness can beget becomingmodesty,and it may help limit misinterpretation
of results by remindingboth the researcherherself and any consumerof
publishedresultsof the researchof its contingentand probabilisticnature.
In an earlierarticle'°I arguedthat an awarenessof the value-ladencharac-
ter of observationshould cause the researcherto prefer studies that are
aimed at more particularpropositions (i.e., more emphasison studies of
particularlocales at particulartimes, less emphasis on studying proposi-
tions about common featuresof a wide set of social practices)and that
make more use of "softer"sources of information(more in-depth inter-
views, less statistics,less emphasison reproducibilityof results)than has
been in fashion in social science researchof the past few decades.

The Politics of Empirical Research

There has been a lengthydebate about what should be meant by the

term "criticalempiricism."It may be that the term should be restrictedto
empiricalresearchthat is self-consciouslyawareof its value-ladencharac-
ter, a view I associatewith Trubekand Esser. The view has been expressed
by some membersof the Amherstgroup that the subjectmatterof empiri-
cal researchshould bear on whether the term "critical"is appropriately
used in describing the research." To be "critical," according to this view,
research must be directed at discrediting the assumptions underlying the
existing legal order or at expressing the point of view and advancing the
interests of underrepresented groups. Research designed to discover bet-
ter ways to achieve some specific policy objective does not qualify.
It is not my intention to take a position on a purely definitional issue,
but I do want to disassociate myself from any implication that research not
defined as "critical" by these authors is less valid. All research, even
nonempirical research, is value laden for the reasons discussed above. The
"turn to interpretation"'2 is not an escape from the values imbedded in
the categories we have inherited for describing behavior. The attempt to
give voice to excluded interests, advocated by some as a true form of criti-
cal empiricism, is just a form of interpretation. Absent the transformative
experience, these received categories limit our ability to understand the
goals and objectives desired and sought by some social group. And it
should be self-evident that interpretive work does not avoid the problem
of agency either. Thus, it is no more possible to state objectively the

10. Whitford, 1986 Wis. L Rev. at 776-79 (cited in note 1).

11. See Sarat& Silbey, "The Pull of the PolicyAudience," 10 Law& Policy97 (1988).
12. See Kennedy,58 S. Cal. L. Rev. 251 (1985).

"true"viewpointof some excludedgroupthan it is to state objectivelythe

"true"cause of some accident or environmentaldegradation.13
The argumentagainst policy-specificresearch,if one is to be made,
must be based on an assessmentof politicaltactics. Some membersof the
Amherst group have suggestedthat policy-specificresearchis most likely
to advance the interests of the powerfulratherthan the powerless.'4By
this view researchershave limited abilityto shape the questions asked. If
the researcherswant their work to be used by policy-makers,they must
addressquestions the policy-makerswant answered. Nor can researchers
control the interpretationof their results. To avoid cooptation by the
powerful, accordingto this view, the only sound political strategyis to
avoid researchpointing towardspecific policy goals, reservingone's ener-
gies for projectsthat can help mobilize political constituenciesthat will
supportfundamentalpoliticalchange. Frequentlysuch researchwill focus
on delegitimizingthe legal order as it presentlyfunctions, demonstrating
how it favors powerful interests and fails to recognize the interests of
There is much sage adviceto those on the politicalleft in these warn-
ings about the uses made of much policy-specificresearch. But it would be
a mistaketo understandsuch adviceto representuniversalpoliticaltruth.
In what we call Westerndemocracies,I believe it makessense to use such
terms as ruling classes and disadvantagedgroups, but I also think that
authorityin these societies is not so hegemonicas to make impossiblere-
form benefitingthe constituenciesthat the left desiresto serve. The wel-
fare state reforms of the 20th century, though far from perfect, are
preferableto what precededthem.15 And becausedesirablereformis pos-
sible in these societies,policy-specificresearchcan play a politicallyaccept-
able role in structuringsuch reformto be modestly more effective. It is
possible for the researcherto be the coopter rather than the coopted.'6

13. This point is discussedextensivelyby Trubekand Esserand is the basis on which

they direct their strongestcriticismat the work of the Amherstgroup. On the subjectivity
of causation,see Kelman,"The NecessaryMyth of ObjectiveCausationJudgmentsin Lib-
eral PoliticalTheory," 63 Chi-Kent L Rev. 579 (1987).
14. Sarat & Silbey, 10 Law & Policy.
15. I rejectthe view, associatedwith some strainsof the Marxistleft, that by legitimat-
ing the existingorder,the welfarestate reformshave delayedthe revolutionthat represents
the only true hope for progressivechange. I agreethat the welfarestate reformshave tended
to legitimatethe existing order, but I am not so confident that revolution,ratherthan a
successfulrepressionand furthersubordinationof disadvantagedgroups,would have been
the consequenceof a failureto adopt them. Nor is revolutionalwaysa more desirablealter-
native than incrementalreform. Witness(insertwhateverrevolutionarysociety particularly
appallsyou-e.g., Iran).
16. Joel Handler'sresearchon the Americanwelfaresystemand HermanGoldstein's
work on the American police seem to me examplesof politicallycorrect implementation
research. Both scholarsare intensely empirical,engagingin extensive observation. They
have concentratedon studyingand promotingsuccessfulreformexperiments,and I suspect
their work has helped these experimentsto surviveand perhapseven to expand. E.g., J.
Critical Empiricism 67

Not all circumstanceswill be amenableto progressivechange, of course.

For the criticalresearcher,there is no substitutefor close attention to the
political possibilitiesof the moment.

Handler,The Discretionary
Decision(1986);H. Goldstein, Reshaping
the PoliceFunction:The