1 Nelken, David, “Beyond the Study of ‘Law and Society,’” 1986 A.B.F. Res. J. 324.Google Scholar

2 Id.Google Scholar

3 See de Sousa Santos, Boaventura, “Room for Manoeuver: Paradox, Program, or Pandora's Box.” 14 Law & Soc. Inquiry 157 (1989). Santos uses Paul Bohannan's concept of double institutionalization. See Bohannan, “The Differing Realms of the Law,”in L. Nader, ed., “The Ethnography of Law,” Special Publication, 67 Am. Anthropologist 33 (1964).Google Scholar

4 Trubek, David M. & Esser, John,” ‘Critical Empiricism’ in American Legal Studies: Paradox, Program, or Pandora's Box?” 14 Law & Soc. Inquiry 3 (1989).CrossRefGoogle Scholar

5 Trubek and Esser interchange the words “empiricism” and “empirical.” Empiricism, a theory that all knowledge and meaning are dependent on experience, and empirical research, which involves the use of observation for the purpose of providing an account of the social world, should be distinguished. Their definition of empirical research seems to incorporate both meanings: “careful observation of the external world for the purpose of providing valid descriptions,”id. at 39; and see Peller, Gary, “The Metaphysics of American Law,” 73 Cal L. Rev. 1159 (1985), whose definition of empirical research they use.Google Scholar

6 Trubek, & Esser, , 14 Law & Soc. Inquiry at 36.Google Scholar

7 Id. at 36–37.Google Scholar

8 Id. at 12.Google Scholar

9 Id.Google Scholar

10 Id. at 17.Google Scholar

11 Id.Google Scholar

12 Id. at 25.Google Scholar

13 Id. at 40.Google Scholar

14 Id. at 44.Google Scholar

15 Trubek and Esser's argument is grounded in references to Sarat, Austin. & Silbey, Susan S., “The Pull of the Policy Audience,” 10 Law & Pol'y 97 (1988), but is also closely linked to earlier discussions of transformative politics by Trubek, David, “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575 (1984).CrossRefGoogle Scholar

16 Silbey, Susan S. & Sarat, Austin, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165 (1987); see Trubek & Esser, 14 Law & Soc. Inquiry at 5 n.3.CrossRefGoogle Scholar

17 We are social scientists (a political scientist and an anthropologist) who do inter pretive research. We are also participants in the Amherst seminar.Google Scholar

18 Trubek, 36 Stan. L. Rev. at 592–600. See especially the discussion of ideas as constituting society at 589 and of transformative politics as changing consciousness at 591.Google Scholar

19 See Trubek, & Esser, , 14 Law & Soc. Inquiry at 17 n. 31, where they cite a statement by Merry, Sally, “Everyday Understandings of the Law in Working-Class America,” 13 Am Ethnologist 253 (1986).Google Scholar

20 Trubek, & Esser, , 14 Law B Soc. Inquiry at 30.Google Scholar

21 Id. at 17.Google Scholar

22 Id. at 18.Google Scholar

23 Id.Google Scholar

24 Id. at 20.Google Scholar

25 Id. at 23. Also see Trubek, , 36 Stan. L. Rev. at 604.Google Scholar

26 Trubek, & Esser, , 14 Law & Soc. Inquiry at 23–24. In this discussion, Trubek and Esser refer to an article by Mather, Lynn & Yngvesson, Barbara, “Language, Audience, and the Transformation of Disputes,” 15 Law & Soc'y Rev. 775 (198081). However, none of this terminology (including the concept of ideology) is used by these two authors.Google Scholar

27 Trubek, & Esser, , 14 Law & Soc. Inquiry at 20.Google Scholar

28 Id. at 27.Google Scholar

29 Id.Google Scholar

30 Id. at 30.Google Scholar

31 Id. Trubek and Esser's treatment of Marxism and interpretive research is difficult to unpack because here “critical empiricism” lumps complex problems together, such as the conception of structure in interpretive research, the revisions on materialist theory within the Marxist tradition, and the ongoing debate within critical legal studies between what the lawyers call “indeterminacy” and “determinacy.” It seem clear, however, that Trubek embraces the indeterminacy position, also fashionable among deconstructionists. From this angle a “material” or constitutive theory of law is equated with “determinism” and “universal science.” For a structural Marxist critique of orthodox determinism see Louis Althusser, For Man (London: New Left Books, 1977), and Nicos Poulantzas, State, Power, Socialism (London: Verso, 1978).Google Scholar

32 Trubek, , 36 Stan. L. Rev. at 589; and Trubek, & Esser, , 14 Law & Soc. Inquiry at 23.Google Scholar

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 identify multiple, localized, and molecular forms of both power and resistance” and that unlike Trubek and Esser's characterization of ideology in Marxist thought, the anthropological influence in the seminar explains ideology by “contextualizing” it (id at 30). This more complex 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 Macaulay, Stewart, “Lawyers and Consumer Protection Law,” 14 Law & Soc'y Rev. 115 (1979).CrossRefGoogle Scholar

34 Generally see Cain, Maureen., “The General Practice Lawyer and the Client: To wards a Radical Conception,” 4 Int'l J. Sociology L. 7 (1979);Cotterrell, Roger, “The Socio logical Concept of Law,” 10 J. L. & Soc'y 241 (1983); and Hunt, Alan, “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 11 (1985).Google Scholar

35 A constitutive concept of law differs from the liberal-legal conception in that law is understood as having the power to frame politics; see Brigham, John & Harrington, Christine B., “Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research,” 17 Int'l J. Sociology L. 41 (1989). Legal processes, doctrine, and institutions shape political possibilities. Recent examples of work on a constitutive approach to law include Robert Gordon's study of lawyer's work as ideology views “every legal practice—from drafting a complaint for simple debt to writing a constitution—[as] mak[ing] a contribution to building a general ideological scheme or political language out of such explaining and rationalizing conceptions” (see Robert W. Gordon, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,”in G. Gelson, ed., Professional ldeologies in America 72 (Chapel Hill: University of North Carolina Press 1983)); Maureen Cain's analyses of work in civil courts as “conceptive ideological work: using old rules to generate new ways of thinking, of making sense of, and thereby of constituting ideologically new and emergent material forms” (see Cain, Maureen, “The General Practice Lawyer and the Client: Towards a Radical Conception,” 4 Int'l J. Sociology L. 13 (1983)); and John Brigham's research on social movements as “constituted in legal terms when they see the world in those terms and organize themselves accordingly…. Legal forms are evident in the language, purposes, and strategies of movement activity as practice” (see Brigham, John, “Right, Rage, and Remedy: Forms of Law in Political Discourse,” 2 Studs. Am Political Development 306 (1987). Also see Harrington, Christine B., “Regulatory Reform: Creating Gaps and Making Markets,” 10 Law & Policy 293 (1988), and Harrington, Christine B. & Merry, Sally, “Ideological Production: The Making of Community Mediation,” 22 Law B Soc'y Rev. 709 (1988). Earlier sources on constitutive theory include Eugene Genovese, The World the Slaveholders Made (New York: Vintage Books, 1969), and Klare, Karl, “Law-Making as Praxis,” 40 TELOS 123 (1979).Google Scholar

36 Pierre Bourdieu, Outline of a Theory of Practice 179, 191 (Cambridge: Cambridge University Press, 1977) (“Bourdieu, Outline of a Theory of Practice”).CrossRefGoogle Scholar

37 Id. at 191.Google Scholar

38 Id. at 237 n. 47; emphasis in original.Google Scholar

39 Id. at 192.Google Scholar

40 Id. at 179; emphasis in original.Google Scholar

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

42 Harrington, Christine B. & Merry, Sally, “Ideological Production: The Making of Community Mediation,” 22 Law & Soc'y Rev. 709 (1988).CrossRefGoogle Scholar

43 Id. at 730.Google Scholar

44 Timothy Mitchell, “Everyday Metaphors of Power” (unpublished paper, 1989). Mitchell makes the argument that some interpretive analyses, particularly those by anthropologists which locate culture in “a textual structure” fall into this same problem. Culture tends to be given an “existence or nature apart from … [its] repeated and yet always differing performances. However much cultural text ‘finds articulation’ in social practices, it is 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 simply because it is not shared by other traditions but because … it is precisely the effect introduced by modern mechanisms of power.”Id. at 23–24.Google Scholar

45 Id. at 35.Google Scholar

46 Id. at 38, a point that is based on Michel Foucault, Discipline and Punish The Birth of the Prison (New York: Pantheon, 1977).Google Scholar

47 For a discussion of relational conceptions of power see Bachrach, Peter & Baratz, M. S., “The Two Faces of Power,” 57 Am. Pol. Sci Rev. 947 (1962); Steven Lukes, Power: A Rudical View (London: Macmillan Press, 1974); and Michel Foucault, “The Subject and Power,”in H. L. Dreyfus & P. Rabinow, eds., Michel Foucault: Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press, 1982).CrossRefGoogle Scholar

48 Trubek, & Esser, , 14 Law & Soc. Inquiry at 24.Google Scholar

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 as sites of law. See John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987), and also see Brigham, & Harrington, , 17 Int'l J. Sociology L. at 46–50 (cited in note 35).Google Scholar

50 The move in recent work to a focus on sites rather than on margins or centers is intended as a move away from assumptions about core and periphery, without losing sight of the power relations that shape meanings in these settings: see Harrington, & Merry, , 22 Law & Soc'y Rev. 709 (cited in note 35). Challenging conventional scholarship that retains legal hierarchies and expanding the location of law not only decenters the conventional hierarchy of legal form, but also challenges the recent revival of political pluralism in social theory—a revival best captured by the “many voices” view of “legal discourse” and the embrace of Richard Rorty's philosophical relativism; see Richard Rorty, Philosophical and the Mirror of Nature (Princeton, N.J.: Princeton University Press, 1979), and for an example of sociolegal work that embraces Rorty's position see Austin Sam 6 Susan S. Silbey, “The Pull of the Policy Audience,” 10 Law & Policy 97 (1988). For critiques of this position see Alan 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), and Brigham, & Harrington, , 17 Int'l J. Sociology L. 41. As discussed above, interpretive sociolegal 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 relations of material life, see Harrington, Christine B., “Moving from Integrative to Constitutive Theories of Law: Comment on Itzkowitz,” 22 Law & Soc'y Rev. 963 (1988). If we limit the interpretive project to simply documenting “challenging voices” or the “multi-vocality of law,” we will indeed fall back into the relativism of “descriptive” legal pluralism—a relativism which depoliticizes law by finding it “everywhere”—and implicitly embraces the politics of that epistemology.CrossRefGoogle Scholar

51 Trubek, & Esser, , 14 Law & Soc. Inquiry at 34–40.Google Scholar

52 Id. at 37.Google Scholar

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 California Press, 1986) (“Clifford & Marcus, eds., Writing Culture”).Google Scholar

54 Id.Google Scholar

55 Marjorie Shostak, Nisa: The Life and Words of a !Kung Woman (New York: Random House, 1983).Google Scholar

56 Id. at 104.Google Scholar

57 Vincent Crapanzano, “Hermes' Dilemma: The Masking of Subversion in Ethno graphic Description,” in Clifford & Marcus, eds., Writing Culture 74 (“Crapanzano, ‘Hermes’ Dilemma'”): Clifford Geertz, “Deep Play: Notes on a Balinese Cockfight,”in C. Geertz, ed., The Interpretation of Cultures 412 (New York: Basic Books, 1973).Google Scholar

58 Crapanzano, “Hermes' Dilemma” 74.Google Scholar

59 Renato Rosaldo, “Grief and a Headhunter's Rage,”in E. M. Bruner, ed., Text, Play and Story: The Construction and Reconstruction of Self and Society, 178 Proceedings of the American Ethnological Society 192–93 (Washington: American Ethnological Society, 1983).Google Scholar

60 Id. at 182.Google Scholar

61 Id. at 183.Google Scholar

62 Bourdieu, Outline of a Theory of Practice at 1 (cited in note 36).Google Scholar

63 See James Clifford, “On Ethnographic Authority,”in J. Clifford, ed., The Predicament of Culture 26 (Cambridge: Harvard University Press, 1988).CrossRefGoogle Scholar

64 E. E. Evans-Pritchard, The Nuer (Oxford: Oxford University Press, 1940); and see Renato Rosaldo, “From the Door of His Tent: The Fieldworker and the Inquisitor,”in Clifford & Marcus, eds., Writing Culture 77, who discusses Evans-Pritchard's relationship with the Nuer.Google Scholar

65 Carol J. Greenhouse, Raying for Justice 9–18 (Ithaca, N.Y.: Cornell University Press, 1987). And see Yngvesson, Barbara, “Responses to Grievance Behavior: Extended Cases in a Fishing Community,” 3 Am Ethnologist 353 (1976), for a discussion of the importance of attending to local interpretation and responses for an understanding of acts and events, 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 Theory of Social Control 257 (New York: Academic Press, 1985), for a discussion of “point of view” in ethnographic studies of law.CrossRefGoogle Scholar

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 (Chicago: 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”).Google Scholar

67 Trubek, & Esser, , 14 Law & Soc. Inquiry at 45.Google Scholar

68 Trubek and Esser describe several approaches to critical research which they attribute to various members of the seminar (at 41–44). It is clear from their discussion at 44 and 45, however, that the approach they endorse is one in which critical work “consciously construct[s] … a knowledge, which can be used to advance [the] … politics” of “a specific marginalized group” (at 44). They suggest that only in taking such a stance is it possible to move beyond “partial critique” and “partial adaptation of an interpretist stance” (at 45). In what follows, we challenge this approach to the relationship of knowledge and politics.Google Scholar

69 Id.Google Scholar

70 Id. at 46.Google Scholar

71 Id. at 44.Google Scholar

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 scientific 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 specific set of social conditions (globalization of participatory democracy). Scientific research can contribute to creating these conditions by “structural inquiry into the number and nature of sites” for the production of knowledge.Google Scholar

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).Google Scholar

74 See Rosaldo's discussion of this issues in “From the Door of His Tent” at 90 (cited in note 64).Google Scholar

75 Id. at 45. This approach is best articulated by Marcus & Fiacher, in Anthropology as Cultural Critique.Google Scholar

76 See MacBean, James R.,” ‘Two Laws' from Australia, One White, One Black,” 1983 Film Q. 30 (1983).CrossRefGoogle Scholar

77 Bourdieu, Outline of a Theory of Practice at 1 (cited in note 36).Google Scholar