Legal research and the social sciences, L.Q.R.

2006, 122(Oct), 632-650

L.Q.R. 2006, 122(Oct), 632-650

Law Quarterly Review

2006
Legal research and the social sciences
CHRISTOPHER MCCRUDDEN. 1 2
© 2019 Sweet & Maxwell and its Contributors

Subject: Legal methodology

Other Related Subject: Jurisprudence.

Keywords: Legal methodology; Legal research; Socio-legal studies;

*632 FOUR overlapping research agendas form the bulk of current academic legal scholarship in Britain. First, the
understanding and internal coherence of legal concepts and legal reasoning: how legal concepts fit together, the consistency
of the use of concepts in different areas of law, the extent to which general principles can be extracted from legal reasoning
that can be used to predict or guide future legal decision-making. Secondly, the meaning and validity of law: the examination
of what makes law different from, or similar to, other normative systems. Typically, this has involved questions such as:

-- "What is law?"

-- "How far are issues of ethics or morality part of legal reasoning?"

-- "How does a set of normative principles come to be thought of as "legal'?"

-- "How does law differ from other social institutions and practices?"

Thirdly, the ethical and political acceptability of public policy delivered though legal instruments: the consideration of issues
such as whether specific legal interventions are acceptable when assessed against external moral, ethical or political principles,
or what should be the appropriate legal response where none exists at the moment. Policy prescription is thus often encountered
in legal scholarship, sometimes addressed to the courts, sometimes to policy makers in government. Fourthly, the effect of
law. What effect, if any, does law have on human behaviour, attitudes, and actions? How does it have these effects? Are some
institutional mechanisms for delivering legal outcomes more appropriate or effective than others? Each of these four sets of
issues can be studied in a purely domestic legal context, such as England and Wales, or at the European level, internationally
or comparatively, as a contemporary issue, or historically.

Which, if any, of these questions engage a legal academic in "social scientific" research?

LEGAL RESEARCH AND THE "SCIENTIFIC METHOD"

We can distinguish two broadly contrasting approaches to science that are frequently on display in discussions of social
science methodology. 1 The *633 first, older, model of science, perhaps best exemplified in some areas of mathematics,
acquires knowledge on the basis of constructing logically coherent conclusions from elementary principles. The techniques
used are argument, conceptual clarification, logic, and discussion. The second uses the term "science" to mean the generation
of knowledge by empirical investigation of natural phenomena, often using laboratory investigation. The distinction, then,

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between the older and newer forms of scientific enquiry is that the former is based largely on logical argumentation, the latter
on empirical examination of the phenomenon, and the testing of theoretical hypotheses.

DOCTRINAL ANALYSIS

Over the past few centuries, Western legal academics often thought they were being scientific in the first sense. 2 They
considered, in other words, that they were studying law using reason, logic and argument. They adopted methods that date back
at least to the scholastic philosophers. The methodology adopted is one that concentrates on the primacy of critical reasoning
based around authoritative texts. But this is not simply textual analysis, at least in common law systems, for the idea of law
as a practice is deeply embedded. The core of this type of legal research concentrates on issues of legal coherence, what is
sometimes called "black letter law", or "doctrinal legal analysis", adopting an internal viewpoint, the meaning of which will
be considered subsequently.

Although sometimes much disparaged by non-lawyers (and by some legal academics) as narrow, the ability to engage in this
type of research is what most often marks out what are perceived by one's legal colleagues as "good lawyers" from "bad
lawyers". 3 This type of work concentrates substantially on the first set of research questions that I mentioned above. Crucially,
traditional legal analysis adopts an "internal" approach. The internal approach is the analysis of legal rules and principles taking
the perspective of an insider in the system. As David Ibbetson has written:

"Its sources are predominantly those that are thrown up by the legal process: principally statutes and decided cases, supplemented
where possible with lawyers' literature expounding the rules and occasionally reflecting on them." 4

An external approach, in contrast, is the study

*634 "of the law in practice, of legal institutions at work in society rather than legal rules existing in a social, economic, and
political vacuum." 5

I want to use this distinction to draw out different strands of legal scholarship, although, ultimately, I shall argue that the
distinction is useful mainly for heuristic purposes, and that much recent legal scholarship adopts both approaches.

An internal approach, then, dominates traditional doctrinal scholarship. It often involves the close analysis of decisions by the
higher judiciary, often at the appellate level, and legislation of various kinds. The task for doctrinal analysis is often to attempt to
understand how these various elements fit together, to attempt to draw out the patterns of normative understanding that enable
us to see the wood and the trees together as constituting a working whole. 6 Frequently, however, doctrinal analysis often takes
another form, in which the writer attempts to argue that this or that is the "best" solution to a particular problem, "best" meaning
having the best fit with what already exists. Often, the analysis concentrates on questions of law in "hard cases," and how in
practice these should be addressed. In this hermeneutic approach, the language used by legal academics is heavily dominated
by terms such as coherence, fit and analogy.

What marks out this type of analysis is the attempt to render the law intelligible, but sometimes also to show the multiple
possible readings and contradictions of existing "law". The combination of norms, concepts and institutions, and their interplay,
is mother's milk to academic lawyers. 7 Looked at from the social science perspective, and using social science terminology,
legal academics are constantly constructing explanatory "models" from the legal material at their disposal, models that they
then test against that legal material. There are more or less agreed criteria of what are reasonable or unreasonable readings,
although it is sometimes difficult to articulate these with any precision and they are subject to change.

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I do not want to mislead, however. It is clear that though there are similarities with model building in the social sciences, there are
also considerable differences: doctrinal legal models are causal models, and they are empirically tested, but in only a very limited
sense; in addition, legal model-building takes place within a normative context, and is likely to include normative elements.

*635 Another crucial point is that the approach to legal research that I have identified frequently proceeds from a view of the
legal system as either completely autonomous or, more usually, relatively autonomous. This means that behind such analysis,
as Ibbetson says,

"lurks the assumption that law constitutes a sufficiently autonomous field of experience or discourse that it can legitimately be
described by reference to its own sources." 8

But, the question of what constitutes the appropriate sources of legal analysis is often profoundly contested. So too is the issue
of their relative weight or cogency. 9 In particular, the extent to which its sources include materials other than cases and statutes
varies over time, and between countries. To what extent can accepted sources include considerations of justice, morality or
utility? Or policy analysis? Or social science evidence on the effects of regulations? When they do, then the "internal" approach
to legal analysis will, perforce, include these considerations within their domain. The notion of internal legal analysis is therefore
potentially highly flexible. How far any jurisdiction considers particular sources as relevant is one that is likely to be substantially
determined by the (changing) consensus of academic and practising lawyers and judges. 10

Doctrinal work of this sort is not necessarily antagonistic to engagement with other disciplines. Indeed, several law faculties
in the United Kingdom have long had relationships with the other disciplines that we would now consider at the core of the
humanities, such as classics, history, philosophy, and political theory. These disciplines are being seen as contributing to the
scientific study of law in the first sense, in contributing to the endeavour of applying logic, reason and argument to a body
of material considered legal. Much of this involvement with other disciplines is perceived as useful because it contributes to
better "internal" legal analysis.

LAW AND PHILOSOPHY

Undoubtedly, however, the flowering of the most recent phase of close working relationship between law and the humanities in
Britain began in Oxford after the Second World War. By the 1950s, Oxford law was significantly influenced by developments
in philosophy, and has remained so since then. The work of H.L.A. Hart revolutionised the study of the philosophy of law.
This was true in at least two respects. First, it introduced a degree of philosophical sophistication, hitherto unknown *636
in England, into consideration of doctrinal legal analysis, such as the work of Hart and Honoré on causation. 11 Secondly, it
revolutionised consideration of the second set of research issues: the question of what the relationship is between the normative
system that is law and other normative systems, such as morality. Hart adopted the view that there is no necessary connection
between law and morality, and that law consists of a series of rules that are regarded as law by virtue only of being recognised
as such by social and political elites, what he called "officials of the system". 12 For Hart, the range of legal materials available
to judges meant that legal rules sometimes ran out. When they did run out, judges then resorted to other arguments in order
to decide cases, including policy arguments.

A third major strand in Hart's work, and those of his successors, is the critique of what we might call legal policy from a
philosophical perspective, and using philosophical tools, the third set of research questions. So, for example, Hart's work on
the acceptable reach of the criminal law in areas such as abortion, and homosexuality, and in the proper purposes and scope
of punishment, left an indelible mark on the legal research agenda in the United Kingdom, 13 where lawyers and philosophers
have worked happily together on a wide range of legally-informed philosophical critiques of legal concepts and policy, ranging
from minority rights, to euthanasia. Debates over these issues continue to flourish, providing an area of primary research as
well as influencing more indirectly the approach to doctrinal legal analysis.

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SOCIAL SCIENCES AND LEGAL RESEARCH

But what is the role of the social sciences (excluding philosophy) in legal research? What, first, do we mean by the social
sciences? At one level, the answer is clear. We mean to include, at least, the disciplines of sociology, political science (including
normative political theory), economics, anthropology, statistics and psychology. For the purposes of this paper, however, it may
be more useful to distinguish, following Murphy, 14 between, first, the more empirical branches of each of these disciplines;
secondly, the more interpretative and phenomenological branches of the social sciences; and thirdly, more social theory-based
approaches. Each of these three developments within the social sciences has impacted on legal research. Each is sceptical that
either an analytical *637 philosophical approach of the type pioneered by Hart, or doctrinal legal analysis, are up to the task
of explaining law in all its richness, and thus each has contributed to a set of critiques of law. Importantly, social scientific
approaches to legal research are often dominated by an "external" approach.

This "external" turn led to the growth of three approaches to legal scholarship, widely seen as antagonistic to each other. The first
is generally termed socio-legal studies (within which, for these purposes, I include criminology). In the British context socio-
legal work and criminology has frequently drawn on the more empirical side of sociology and psychology, although some of
its work has been influenced by phenomenology and hermeneutics. The second was the development of Critical Legal Studies,
drawing on social theory and particularly influenced by the Frankfurt School. The third, and more recent, development is the
law-and-economics movement, which draws more substantially on microeconomics, particularly rational choice. Each of these
has affected the methodology of some current legal research.

SOCIO-LEGAL RESEARCH

Those who developed socio-legal research usually argued that a more rounded picture will be gained only if we seek to adopt
a more scientific understanding of law, using the term science in the second sense to mean the generation of knowledge by
empirical investigation. This approach often emphasised the disparity between "law in the books" and "law in action", to use
the phrase first coined by Roscoe Pound in 1910. 15 It examines the role of law, attempting to discover whether patterns can be
identified after collecting and organising facts based on observation. Socio-legal studies focuses on the question, as Eekelaar
and Maclean have put it,

"of relating how the form and content of the law (as may be found in statements of law in legal textbooks), which are matters
for intellectual comprehension and interpretation, move beyond such intellectual existence into social reality." 16

Legal rules are not self-enforcing, in other words; they must be mobilised. What socio-legal studies is, exactly, is heavily
contested but at its core, I understand it meant originally the use of empirical social science disciplines such as sociology,
anthropology, social psychology and political science to investigate and understand legal phenomena and the role of law in
society, on the basis of both multi-disciplinary and *638 inter-disciplinary work. In contrast to the doctrinal scholarship and
current analytical legal philosophy, this socio-legal work often concentrates on the routine in the legal process, rather than
the hard case, and the operation of law by actors at the lowest levels of the legal hierarchy, rather than at the appellate level,
attempting to come up with "general predictions about when law affects society, in what ways and under what conditions." 17

CRITICAL LEGAL STUDIES

The second major external approach in legal scholarship has sometimes been termed "post empiricist scholarship", 18 one
example of which is Critical Legal Studies ("CLS"). This was a loose collection of American legal scholars, originally influenced
by the wilder aspects of American Legal Realism, 1960s Marxism, and the growth in social and literary theory of what can

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broadly be called post-modernism. This heady brew, which spread to Britain in the 1980s, led to scepticism about the role of
internally based legal reason. It emphasised the importance of understanding the constructed nature of what we think of as
objectivity. It was, essentially, sceptical that the older understanding of science, namely the role of reason, has any real claim to
validity or truth in legal studies. Such critics argued that traditional legal philosophy conceals "the fundamental indeterminacy
of legal decision-making" 19 and legal doctrine masks the law's hegemonic function, ensuring the dominance of social and
economic elites. It was equally critical of empirical socio-legal research. Whilst great fun for the participants, CLS's critique
of ideology blazed during the 1980s, but has now generally faded, apart from some few bastions in the United States. At its
best, it brought to light the role of power relations in the generation of knowledge and, perhaps, in particular, the importance
of understanding the role of gender and race in that process. It left in its wake the importance of identity issues in legal studies,
heavily influenced by feminist legal scholarship, critical race theory, and a scepticism about rights-talk. Methodologically,
although not politically, CLS tended to be relatively conservative, usually resorting to doctrinal analysis in practice, though one
leavened with social theory, an external perspective, and a radical political agenda. Only in the (sometimes rather irritating)
use of personal narrative as a way of "situating" the author can they be said to have contributed anything methodologically
novel to legal scholarship. 20

*639 LAW AND ECONOMICS

The third major external approach in legal scholarship has been law and economics. It is probably the single most important
methodology in American legal scholarship, other than traditional doctrinal scholarship, and is applied to all areas of legal
concern. In Britain, however, neoclassical economics is almost entirely absent from academic legal study, except in such
sub-disciplines as competition law, and to a lesser extent labour law, company law and regulation. What, then, is it about
microeconomics and rational choice models that appear at once so powerful, and yet so alien to British legal scholarship? Our
starting point must be rational choice theory. At its core, I understand rational choice to posit the relatively simple idea that, in
general, individual human beings know what is best for them, in the sense that they are rational utility maximisers. They "have
goals and make choices intended to achieve their goals." 21 Human beings calculate the costs and benefits of their actions.
They choose those actions that they expect will best serve their goals, given the available evidence. The power of the theory is
its apparent universality, its testability and its importance in a wide range of social situations, if it is correct. When combined
with the application of rigorous mathematical modelling, and the application of computer-assisted analysis of large quantities
of data, the more it looks as if the social sciences can come closer to the second conception of science. The theories that are
developed are universal theories, not bounded in time or relevant only to one jurisdiction, as much of legal research is. The
emphasis on goals and choices

"contrasts with sociological and psychological [and therefore socio-legal] approaches that treat behaviour as a response to
organisational norms, social pressures, or inner drives." 22

Perhaps the most famous article of the genre, certainly among the most cited articles in American law journals, and in many
ways the start of the modern law and economics movement, provides a useful illustration of the method. Ronald Coase's article,
"The Problem of Social Cost", was published in 1960 and is among the most important theoretical statements in law and
economics. 23 This is what lawyers would probably say it meant: Coase's theorem holds that when transaction costs are zero
or very low, bargaining will lead to the efficient use of resources, regardless of the law. Certain insights flow from this. First,
if the desired legal outcome is efficiency, there may be circumstances in which that goal will be achieved without any need for
law. Secondly, in certain circumstances, the law may *640 actually impede or make more costly an efficient outcome. Thirdly,
where transaction costs are high, achieving an efficient outcome may depend on law. Economists would probably describe the
theorem somewhat differently, substituting the idea of "property rights" for "law" in the description I have given. Indeed, it
is noticeable that in academic writing on the institutional turn in economics that "property rights institutions" seem frequently
to be used as a substitute for "legal institutions". My own view is that a richer idea of the institutional complexities at work

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would be captured by more explicit reference to legal institutions, a point I shall return to subsequently. The Coase theorem has
generated a huge literature and could be the basis for a profitable paper by itself, which I shall not attempt here.

Instead, I shall concentrate on two common criticisms, from socio-legal scholars in particular, about rational choice models as
applied to legal phenomena. The first is that such an approach, based on methodological individualism, is incompatible with
research that concentrates more on systems and institutions. The second common criticism is that law and economics often
seems to have a political agenda that is politically neoliberal. Neither of these criticisms is convincing, in my view. The unease
about law and economics lies elsewhere than in methodological concerns or perceived political bias. My sense is that this
unease, apart from simple ignorance of economics, often arises from its important role in generating what Duxbury has called
"the counter-intuitive impulse". 24 By this he means that law and economics is often most powerful when it challenges legal
and political orthodoxy. "Over and again, lawyer-economists", he says, "want to warn us that things are not as they might at first
appear." 25 Indeed, sometimes they turn out to be the opposite of what orthodox thinking supposes. This can often challenge
deeply held views. In short, law and economics is reviled for much the same reason that law and economics scholars often
revel in their reputation: they rather like being the enfants terribles of the legal academy. And to the extent that the function of
scholarship is to afflict the intellectually comfortable, it seems to me that they can play an exceptionally important role.

CHARACTERISTICS OF "EXTERNAL" LEGAL RESEARCH

These three "external" approaches--socio-legal studies, critical legal studies and law and economics--despite their many
differences, have several characteristics in common. The first involves a broadening of the disciplinary background of the
research community involved. *641 In considering the research carried out using the older methods of legal research, it is clear
that most of the researchers are lawyers. 26 Research in law, however, is not now any longer the "preserve of the academic lawyer
alone, but has attracted scholars from across the social sciences, especially sociologists, economists, and psychologists." 27
Secondly, these approaches tend to regard the appropriate research agenda as encompassing all four of the issues mentioned
earlier, thus occupying some of the territory originally thought to be the preserve of doctrinal lawyers.

Most importantly for our purposes is their third common characteristic: the adoption of a much more explicitly "external"
perspective when viewing the operation of legal phenomena. In this sense, they often proceed from a view of the legal system
as either entirely or (more usually) partly determined by the same type of forces that affects other non-legal social phenomena.
Law, therefore, can and should be examined using the same tools and methodologies as are used to study any other political,
social or economic practice. They reject the assumption that law is autonomous, or largely so. At the more extreme edges of
each of these approaches, law is viewed as simply politics, or as simply economics, or as simply sociology. What we see, in other
words, is the growth of an approach to law that may challenge the idea of legal scholarship as a separate craft. They tend to set up
an apparently irreconcilable tension with important aspects of traditional legal scholarship, in particular doctrinal legal analysis.

END OF "INTERNAL" LEGAL RESEARCH?

Are we seeing, then, the end of a specifically legal sphere, where legal research "steadily succumbs to the influence of the social
and behavioural sciences"? 28 Some, like Richard Posner have encouraged such a development. 29 Others have decried it; in
1990, Ruth Deech objected to the apparent regard that law reformers were paying to social science. The influence of social
scientists had led, she asserted, to an apparent reduction in the "intellectual challenge and content of the law." 30 But I do not
believe that this is occurring. Rather, I agree with Rubin, who argues that these apparently irreconcilable approaches in legal
research are now "being significantly eroded" by developments in each. 31

*642 There are several significant developments that contribute to my sense that legal research now embraces a pluralism
of methodological approaches. These developments have had the effect of moderating important elements of legal research

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dominated by both "internal approaches" and "external approaches", creating opportunities for closer working across these
boundaries, and between law and the social sciences. What is emerging are approaches that combine both the internal and the
external approaches that I have distinguished up to this point, pinpointing what is distinctive about law as a social construction,
as well as examining its inter-relationship with other social phenomena.

CURRENT LEGAL SCHOLARSHIP AND THE ACCEPTANCE OF METHODOLOGICAL PLURALISM

Without attempting to be comprehensive, we can mention some developments as particularly important, beginning with
the social science side. There have, first, been important evolutions in economics and political science that render it more
sympathetic both to traditional legal scholarship, and legal philosophy. Rational choice theory is now more open to the role
that institutions and organisations play in individual decision-making. Studies in institutional economics of the type carried
out by Douglass North 32 and Oliver Williamson 33 seem close to the organisational and institutional approach that dominates
research on legal phenomena.

A second development has been the incorporation of some findings of recent behavioural economics into legal research. 34 This
has been important both in challenging the approach to rationality inherent in previous law and economics, and in leading to
attempts to set up experimental testing. If people are irrationally attracted to current endowments, or irrationally influenced by
the way choices are presented, then this has important implications for legal decision-making. There is now also considerably
greater recognition that cognitive science may require deep revisions to economic models of the human decision-maker. The
periodic recurrence among economists of replacing the more radical assumptions of economic man with models of bounded
rationality and bounded selfishness, and the recognition of the importance of institutional and organisational context to decision-
making, make joint working considerably more likely.

A major development within law and economics scholarship has reflected this, namely the study of whether internalised norms
"exercise powerful effects that conflict with the self-interest, or at least the *643 immediate self-interest, of the author." 35
In a famous book testing the Coase theorem, Robert Ellickson studied the way in which cattle ranchers and farmers in Shasta
County in California, handled disputes about the harms caused by cattle trespassing on farmland. 36 In general, he found the
Coase theorem to be limited in its ability to predict how disputes would be handled in practice. The study discovered that the
Coase theorem overemphasised the importance of law in certain circumstances. Although they knew there was law that could
have governed their relationship, few of the farmers or the cattle ranchers actually knew what the law was, or had regard to
it in practice. Rather, they ordered their relationships on the basis of social norms, rather than law. There was bargaining but,
contrary to expectations perhaps, it was not bargaining in the shadow of the law, but without law. It also demonstrated that the
social norms of Shasta County overcame the immediate self-interest of the farmers and ranchers.

Within socio-legal studies, the turn to supplementing empirical work with more theoretical approaches, has also meant that socio-
legal scholars have increasingly engaged with other approaches. Themes drawn from Critical Legal Studies have influenced
several British socio-legal scholars. But Critical Legal Studies has also become more sophisticated. Some Critical Legal
scholars, such as Robert Gordon, 37 are much more likely to accept claims to law's partial autonomy, accepting the existence
of some degree at least of insulation in the activities of lawyers and judges. A separate development within socio-legal studies,
drawing on systems theories, has also resulted in considerable attention being paid to what might be distinctive about the legal
system. First developed by Luhmann, 38 and refined by Teubner, 39 this approach views law as a more or less closed normative
system in which norms are generated and sustained within the system itself, thus emphasising the autonomous aspects of legal
thought in a way that previously would have seemed unlikely from a sociological perspective. Ironically, this brings socio-legal
scholarship closer to doctrinal legal scholarship than in the past.

So too, within those approaches to legal scholarship that previously adopted more of an internal perspective, several
developments have occurred that have opened up the possibility of greater rapprochement with external approaches. First, legal

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philosophy has increasingly focussed on the political theory aspects of the third research issue mentioned above, increasing
the opportunity for external perspectives to be engaged with that are neither legal nor philosophical. Particularly in the critique
*644 of legal policy, Hart and his successors have appeared somewhat more comfortable in using social science literature
derived from economics or sociology. Hart himself, for example, worked with David Soskice, the economist, on abortion. 40
Sociology and economic approaches are now increasingly influencing legal philosophy. 41 The approach to law in doctrinal
legal scholarship is also changing in ways that allow for increased multi-disciplinary work. In the past, doctrinal legal analysis
has concentrated on "state-centred" law, meaning the law that derives from, and is accepted by, the institutions of the nation
state. Traditional doctrinal analysis, whether in a particular state's legal system, or in comparative law, often emphasised the
extent to which law was the result of a country's unique history or culture. Even traditional ideas of international law were
essentially state-centred, seeing international law as developing mostly either from state practice, or from the acceptance of
treaties by states. This was seen as at odds with the desire of increasingly dominant social science approaches that stress
the need for generalisation. Economists, after all, do not see the utility of economics as limited to the country in which a
theory was developed. 42 Intriguingly, however, legal academics are increasingly questioning this state-centredness, and "there
are indications … that this theoretical preoccupation with state structures, state institutions, and state laws may now be in
decline." 43 The importance of European legal scholarship, of human rights law, of the use of such concepts as "soft law", of
the growing conversation between judges in different jurisdictions, of globalisation, all point to developments that weaken the
state-centred-ness of traditional legal categories. As Bell writes, "The conventional hierarchies of norms is being challenged
by ideas of "networks' of normative orders." 44 This development links with traditional socio-legal work on legal pluralism,
which argues that the state does not have a monopoly on what we mean by law, to create synergies between internal and external
perspectives on law in fields as diverse as comparative law and criminal law. 45

Thirdly, much traditional doctrinal legal analysis now relaxes its view of the autonomy of law, drawing on economic and socio-
legal insights increasingly easily. Now, the seamless integration of insights from other *645 disciplines into legal scholarship
is sufficiently common for it to be unremarkable, although it is still more common in some areas than others. As Collier has
recently argued:

"… there now exists a commonly held view within legal studies that the majority, if not all, university law schools can usefully
be characterised as embracing a broadly "liberal', pluralistic approach to legal education and scholarship." 46

Cownie observes, drawing on her research, "We're all socio-legal now." 47

Seen from this perspective, then, the broad insights of the external approaches are increasingly being incorporated into traditional
British legal scholarship. This is not to say that all legal academics are adopting an external perspective. Some areas of law, such
as public law, family law and labour law seem more likely to engage with these perspectives than other areas. Nor am I arguing
that all are engaging in empirical work themselves. Rather, my argument is that those engaging in doctrinal legal analysis much
more frequently than before are ready to support, and sometimes to test their doctrinal or theoretical models by drawing on
social science influenced information. Should this methodological pluralism be regarded as a strength or a weakness in current
legal scholarship? Does it show an immature desire to derive comfort by leavening legal research with undigested parts of other
more prestigious disciplines? My own view is contrary to the thrust of such questions. In my view it demonstrates, instead, a
mature openness to other disciplines that demonstrates a welcome self-confidence.

But we should not be blind to outside criticism. Our assessment of our research should not be limited to the views of other
lawyers. In particular, it should include the assessments of other social scientists working on related topics. If they are not
persuaded of the utility of what we are doing, perhaps particularly of our methodologies, we need at least to know why. But
that assumes that other social scientists actually know of the work we produce, and have assessed it, and frequently this is not
the case. We need to develop strategies that bring our work much more frequently to the attention of those in cognate areas, not
least in order to ensure that the approaches we take, and the results we achieve, make sense.

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ONE-WAY TRAFFIC?

Thus far, I have concentrated on what the social sciences can do for law. What about the flip side of the coin? What can
legal research do *646 for the social sciences? We know that, in the past, legal studies have made an important contribution
to the development of other social science disciplines. Now, however, if one views the relationship between law and other
disciplines as akin to that between neighbours, then the relationship seems one-sided. Law increasingly uses insights from the
other social sciences but, with some limited exceptions, mainstream social scientists neither perceive themselves as studying
legal phenomena nor (apparently) do they see themselves as able to gain any significant insight from legal scholarship.

There are several problems with convincing social scientists that legal research has anything to contribute to the social sciences.
Institutionally, academic law sits uncomfortably somewhere between humanities and the social sciences in universities, although
particular legal academics are more likely to see themselves as closer to one rather than the other. 48 Legal academics, in my
experience at least, seldom appear to talk about methodology in the context of their research, whereas other social scientists often
place particular importance on methodological issues. There is another problematic element: the apparently almost complete
blindness to the potential relevance of legal issues in much social science research. The absence of explicit consideration given
to law and legal institutions in much mainstream social sciences research is puzzling. The role of one of the primary methods
of organising social life seems to be left outside consideration. Why is that the case? Several explanations are possible. The
first explanation may lie simply in the apparent aridity of legal research, its apparent absence of interest in theory, and its
apparent closeness to legal practice (all false assumptions as I hope I have shown). Academic law may seem too intimidating
and technical, too specific, too detailed and too parochial to have much to offer to approaches that are attempting to bring
clarity, simplicity, elegance, and generalisation. And yet, the other social sciences are equally complex. In much social science
research, there appears to be fairly regular reference to the other social (and often natural) sciences without embarrassment,
demonstrating the extent to which where there is a will, there is a way.

An explanation for law's virtual exclusion from the modelling of the other social sciences may be sought at a deeper level.
Is it to be found in the assumption that law is, ultimately, unimportant? Is law simply "superstructural", as Marxist historical
materialism used to assert, only the outward manifestation of much deeper social and behavioural processes that should attract
social science research instead? In this perspective, law becomes the symptom not the cause. Legal research is impliedly missing
the point, reifying the legal at the expense of the real determinants of the *647 social. However, in 1997, Professor Goodhart,
a professional economist, argued that although the scale of law on the economy was pervasive, law was "rarely examined in
any depth by economists". He illustrated his argument with an analysis of how often there was discussion of the legal system in
mainstream textbooks on economics. In the classic textbook Samuelson's Economics (currently 800 pages), one-quarter of one
page addressed the legal framework of the economic system and three-quarters of a page considered the influence of economics
on law. 49

Treating law as epiphenomenal may not be the only problem. Investigating the legal dimensions of an issue in social science
research may be seen as requiring a close working relationship with legal academics. Is this a price too high to pay, perhaps?
Fiona Cownie has described how the "predominant notion of academic lawyers [by those from other disciplines] is that they
are not really academic." 50 Drawing on interviews with other British academics by Becher some time ago, she describes how
one interviewee summed up the attitude to legal academics. They are seen as "arcane, distant and alien--an appendage to the
university world." 51 Their personal qualities are described by other academics as "dubious": "they are variously represented
as vociferous, untrustworthy, immoral, narrow, arrogant and conservative." 52 Their scholarly attitudes are described as
"unexciting and uncreative, comprising a series of intellectual puzzles scattered among "large areas of description'." 53 The
work Cownie quotes is a little dated, so one might hope that these views represent past attitudes, but this cannot be guaranteed.

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There is no point in complaining if legal scholarship really has nothing to contribute to mainstream social scientific work. I
will argue, however, that law has indeed something to offer and that the failure to engage with legal scholarship leads to a
more intellectually impoverished social science than need be the case. This is not an argument for legal imperialism. Nor is it
my aim to produce some artificial synthesis of the various disciplinary approaches. Rather, it is to argue that engagement with
the diversity of different social sciences approaches, including law, produces a stronger social science. What, then, can legal
scholars bring to the table of social science research?

I suggest, tentatively, that in at least four respects legal research may be able to contribute to social science research. First,
doctrinal and philosophical consideration of law can help provide conceptual clarity *648 and specificity about particular
sets of social norms and social concepts that occur in both the legal and social contexts. 54 Many examples spring to mind:
the concept of "obligation", the idea of a "promise", different forms that "rules" take and how they differ from other cognate
concepts, the concept of a "right", and the idea of "discrimination". Legal scholars, in ways that are of general relevance, have
extensively considered all these. Those whose empirical work is built upon hypotheses that involve such concepts but do not
incorporate legal insights do so at their peril. Legal work provides a treasure trove of conceptual resources. Without reference
to legal philosophical clarity, hypotheses are likely to be much less clear, and therefore much less testable in certain areas.
Now, sometimes, the response to this argument is that social science research needs simple concepts, because otherwise the
methodological tools available cannot cope. If that is a valid point, then the lack of sophistication of the available methodological
tools needs to be addressed, if they cannot cope with the complexity of real life.

Secondly, and less obviously, where law or legal concepts or legal institutions are recognised by the social scientist to play a
role in the theory that is being developed for testing, the tendency within both economics and sociology is to view law too often
as a datum, as fact, unproblematic, and one-dimensional. Where lawyers are involved in an empirical project, the tendency, in
my experience, is to ask lawyers to identify "the law," stripped of complexity, and preferably in the form of a rule or obligation
that is specific to a limited social setting. 55 If legal academic work shows anything, it shows that an applicable legal norm
on anything but the most banal question is likely to be complex, nuanced and contested. Law is more often in the process of
becoming, than settled. Law is not a datum; it is in constant evolution, developing in ways that are sometimes startling and
endlessly inventive, as Doreen McBarnet has demonstrated in her work on "creative compliance". 56 That is its fascination.
Anyone engaged in research that involves the formulation or testing of propositions incorporating legal issues who does not
understand this will produce results, however satisfying otherwise, that are fundamentally flawed.

Thirdly, and less obvious, social scientists who are not lawyers are perhaps less likely to recognise when law is playing an
important role in the social and economic phenomena they are attempting to analyse. *649 The best example is probably
to be found in the context of theories of regulatory behaviour, where there is an extensive legal literature demonstrating the
inadequacies of public choice theories as explanations for how regulatory decisions are made. In the main, this literature
argues that the organisational context is usually too often ignored or underplayed in public choice theories, and of course the
organisational context is a specifically legal one. It is hard to appreciate the organisational constraints without understanding
the extent to which the legal limits within which organisations operate affect their behaviour. In short, as Mary Dudziak has
argued, law does not simply reflect social context, but also shapes it. Writing of the litigation against school segregation in the
United States, she observes that "the "social context' to which law … was responsive turns out to be constructed, in part, by the
law … itself…" 57 So many of the ideas and categories through which we understand the world are in part legally determined:
marriage, war, crime, to take but three examples. There is a sort of paradox here: law is the product of its social context, yet
the social context is itself in part a product of law. 58

Fourthly, and perhaps most controversial, legal researchers often pride themselves on being able to see the need for a normative
dimension in inter-disciplinary research. Particularly where such research leads to policy proposals, legal academics view their
training in navigating practical decision-making, normative principles, and institutional considerations as equipping them to
play an important complementary role to other social science disciplines, perhaps particularly those with a more descriptive,
empirical bent.

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Legal research and the social sciences, L.Q.R. 2006, 122(Oct), 632-650

CONCLUSION

I have argued, then, that developments within legal scholarship and developments within the other social sciences mean that the
time has probably never been better for inter-disciplinary research, and increased cross-fertilisation. Indeed, at a time when the
social sciences appear to be fracturing, separating from each other into smaller and smaller sub-disciplines, and when increasing
calls are heard for greater communication between the social sciences leading to more interdisciplinary and multi-disciplinary
work, developments within the legal academy are of broader relevance. Legal research and legal scholarship now provides an
interesting model of how interdisciplinary and multi-disciplinary work in the social sciences and the humanities can be done.
The attempt to reconcile and join up the different social sciences and the humanities is not just *650 an aspiration in legal
scholarship, it is currently taking place; slowly and painstakingly, of course, but it is happening. The opportunity is there for
us to make it work better.

Legal research has engaged with the more recent social sciences in ways that would have seemed unlikely even 50 years ago.
Socio-legal studies, sociology of law, law and economics must now be seen as integral to legal research. The social sciences can
(and do already), therefore, contribute significantly to legal research. But, more controversially, legal research should contribute
significantly to the social sciences. The most productive relationship between law and the social sciences, therefore, is one in
which each contributes to the other, with two-way, rather than one-way, traffic.

CHRISTOPHER MCCRUDDEN.

Footnotes
1 Professor of Human Rights Law, University of Oxford; Fellow of Lincoln College, Oxford. I am most grateful
to the many colleagues with whom I have discussed the topic and who read previous drafts. This paper was first
given as part of a series of public lectures to celebrate the opening of the Oxford Social Sciences Centre.
2 Legal methodology; Legal research; Socio legal studies
1 See further H.J. Berman, "The Origins of Western Legal Science" (1977) 90 Harvard L.R. 894 at 931.
2 For a discussion in the United States' context, see H. Schweber, "The "Science' of Legal Science: the Model of
the Natural Sciences in Nineteenth Century American Legal Education" (1999) 17 Law and Hist. R. 421.
3 For a robust defence of such work, see A. Burrows, Understanding of the Law of Obligations: Essays on
Contract, Tort and Restitution (1998), pp.112-114.
4 D. Ibbetson, "Historical Research in Law", in P. Cane and M. Tushnet (eds), Oxford Handbook of Legal Studies
(2003) 863 at p.864.
5 ibid.
6 A.W.B. Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal
Literature" (1981) 48 U.Chi.L.R. 632.
7 J. Bell, book review, (2004) 53 I.C.L.Q. 1049.
8 Ibbetson, cited above fn.4, at p.863.
9 W.L. Twining, "Legal Reasoning and Argumentation" Inter. Encyl Soc. Behav. Sci. (2004) 8670 at p.8671.
10 S. Sedley, book review, [1999] C.L.J 627 at 628.
11 H.L.A. Hart and A.M. Honoré, Causation in the Law (1959).
12 H.L.A. Hart, The Concept of Law (1961).
13 H.L.A. Hart, Law, Liberty and Morality (1963); H.L.A. Hart, Punishment and Responsibility: Essays in the
Philosophy of Law (1968).
14 W.T. Murphy, "Law: History of its Relation to the Social Sciences" Inter. Encycl Soc. Behav. (2004), 8521 at
p.8522.
15 R. Pound, "Law in Books and Law in Action" (1910) 44 Am.L.Rev. 12.
16 J. Eekelaar and M. Maclean, A Reader in Family Law (1994), at p.2.
17 Centre for Socio-Legal Studies, "Theory and Method in Socio-Legal Research" (2004), available at:
www.csls.ox.ac.uk.
18 A. Sarat, "Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-Empiricist
Sociology of Law" (1990) 15 Law Soc. Inq. 155.

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Legal research and the social sciences, L.Q.R. 2006, 122(Oct), 632-650

19 Twining, cited above fn.9, at p.8672.

20 See E. Rubin, "Legal Scholarship" (2004) Int. Encycl Soc. Behav. Sci. 8677 at pp.8679-8681.
21 M.P. Fiorina, "Rational Choice in Politics" (2004) Int. Encycl Soc. Behav. Sci. at p.12760.
22 ibid.
23 R. Coase, "The Problem of Social Cost" (1960) 3 J. Law Econ. 1.
24 N. Duxbury, "A Century of Legal Studies", in P. Cane and M. Tushnet (eds) Oxford Handbook of Legal Studies
(2003), 950 at p.961.
25 ibid., at p.961.
26 J. Baldwin and G. Davis, "Empirical Research in Law", in P. Cane and M. Tushnet (eds), Oxford Handbook of
Legal Studies (2003), 880 at p.881.
27 ibid.
28 Murphy, cited above fn.14, at p.8525.
29 R.A. Posner, "The Decline of Law as an Autonomous Discipline 1962-1987" (1987) 100 Harvard L.R. 761.
30 R. Deech, "Divorce Law and Empirical Studies" (1990) 106 L.Q.R. 229.
31 Rubin, cited above fn.20, at p.8677.
32 D. North, Institutions, Institutional Change and Economic Performance (1990).
33 O.E. Williamson, The Mechanisms of Governance (1996).
34 C. Jolls, C. Sunstein and R. Thaler, "A Behavioral Approach to Law and Economics" (1998) 50 Stanford L.R.
1471.
35 Rubin cited above fn.20.
36 R. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991).
37 R. Gordon, "The Independence of Lawyers" (1988) 68 Boston U.L.R. 1; R. Gordon, "Critical Legal
Histories" (1984) 36 Stanford L.R. 57.
38 N. Luhman, Law as a Social System (2004).
39 G. Teubner (ed.), Autopoietic Law: a New Approach to Law and Society (1988).
40 D. Soskice and H.L.A. Hart, "After the Act": The Guardian, May 3, 1972. See also D. Soskice with T.J.
Trussell, Effects of the Abortion Act, British Journal of Hospital Medicine (1973).
41 For example the extensive presence of M. Weber in J. Finnis, Natural Law and Natural Rights (1980).
42 T.S. Ulen, "A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of
Law" [2002] U.Ill.L.R. 875 at 895.
43 H.P. Glenn, "A Transnational Concept of Law", in P. Cane and M. Tushnet (eds), Oxford Handbook of Legal
Studies (2003), at p.839.
44 Bell, cited above fn.7, at p.1049.
45 See, e.g. N. Lacey and L. Zedner, "Discourses of Community in Criminal Justice" (1995) 22 J.Law Soc. 93.
46 R. Collier, "Research Capacity, Critical Social Science and the Paradox of Socio-Legal Studies", 43 Socio-Legal
Newsletter (Summer 2004), at p.3.
47 F. Cownie, Legal Academics: Culture and Identities (2004).
48 W.L. Twining et al., "The Role of Academics in the Legal System", in P. Cane and M. Tushnet (eds), Oxford
Handbook of Legal Studies (2003), p.920.
49 C.A.E. Goodhart, "Economics and the Law: Too Much One-Way Traffic?" (1967) 60 M.L.R. 1 at 4, 7.
50 F. Cownie, "Researching (Socio) Legal Academics", (2004) 42 Socio-Legal Newsletter 1.
51 ibid.
52 ibid.
53 ibid., quoting T. Becher, Academic Tribes and Territories: Intellectual Enquiry and the Culture of Disciplines
(1989), p.30.
54 W.L. Twining, "Have Concepts, Will Travel: Analytical Jurisprudence in a Global Perspective" (2005) 1 Inter. J.
Law in Cont. 5.
55 Edelman and Suchman discuss this in their work on the relationship between "law and society" and
organisational studies: L.B. Edelman and M.C. Suchman, "The Legal Environments of Organizations" (1997)
23 Ann.R.Soc. 479; L.B. Edelman and M.C. Suchman, "When the Haves Hold Court: Speculations on the
Organizational Internalization of Law" (1999) 33 Law Soc.R. 941. I am grateful to Philip Lewis for drawing my
attention to this.
56 D. McBarnet, Crime, Compliance and Control (2004).
57 M.L. Dudziak, "The Court and Social Context in Civil Rights History, Review Essay: From Jim Crow to Civil
Rights: The Supreme Court and the Struggle for Racial Equality, Michael J. Klarman" (2005) 72 U.Chi.L.R.
429 at p.444.
58 A.W.B. Simpson, "Analysis of Legal Concepts" (1964) 80 L.Q.R. 535.

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