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From “Scientism Without Determinism” to “Interpretation Without Politics”: A Reply to Sarat, Harrington and Yngvesson

Published online by Cambridge University Press:  27 December 2018

John P. Esser  and
David M. Trubek
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Type
Review Section Debate
Information
Law & Social Inquiry , Volume 15 , Issue 1 , Winter 1990 , pp. 171 - 180
Copyright
Copyright © American Bar Foundation, 1990 

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References

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

2 “Interpretive paradigm” as a characterization of older law and society research and “interpretive paradigm” as a characterization of emerging law and society research are ideal types we develop in “Critical Empiricism.” See Trubek & Esser at 14–19. However, these labels and the ideal types they reference have roots in earlier works by Amherst Seminar members and by David M. Trubek. For earlier Amherst work, see Sarat, Austin & Silbey, Susan, “The Pull of the Policy Audience,” 10 Law & Polly 97, 100–104 (1988);Engle Merry, Sally & Silbey, Susan, “What Do Plaintiffs Want? Reexamining the Concept of Dispute,” 9 Just. Sys. J. 151, 155–57 (1984);Sarat, Austin, “Legal Effectiveness and Social Studies of Law: On the Unfortunate Persistence of a Research Tradition,” 9 legal Stud, F. 23, 24 (1985);Engle Merry, Sally, “Disputing Without Culture: A Book Review of Dispute Resolution by Goldberg, Green, and Sander,” 100 Harv. L. Rev. 2057, 2062 (1987). For earlier work by David M. Trubek, see Trubek, David M., “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575, 600–604 (1984) (“Trubek, ‘Action’”).Google Scholar

3 Susan Silbey, “Law and the Ordering of Our Life Together: A Sociological Inter pretation of the Relationship Between Law and Society,”in Richard John Neuhaus, ed., Law and the Ordering of Our Life Together (Grand Rapids, Mich.: William B. Eerdmens Publishing, 1989).Google Scholar

4 Harrington, Christine B. & Yngvesson, Barbara, “Interpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990) (“Harrington & Yngvesson”).CrossRefGoogle Scholar

5 Id.Google Scholar

6 Id. at 138–39.Google Scholar

7 Id. at 142.Google Scholar

8 Id. at 143.Google Scholar

9 Id.Google Scholar

10 Because Harrington and Yngvesson also employ Trubek's “Where the Action Is” (cited in note 2) as a tool for interpreting our position, we will include references to this article as well. Harrington & Yngvesson at 138.Google Scholar

11 Trubek & Esser at 20.Google Scholar

12 “Instrumentalism makes a radical distinction between ideas and behavior and conceives action as responding to external sanctions, legal and otherwise. The interpretive theory rejects the ideas/behavior distinction and conceives action as a synthesis of behavior and social meaning. It sees action as practices that combine interests in and perceptions of the world to create implicit schemes of response, disposition, or habit.” Trubek & Esser at 17–18.Google Scholar

13 See Trubek, “Action,” at 602; Trubek & Esser at 9.Google Scholar

14 Trubek, “Action,” at 604. Trubek & Esser at 19 & 20.Google Scholar

15 Harrington & Yngvesson at 140, 142–43.Google Scholar

16 Trubek, “Action,” at 608–9; Trubek & Esser at 17–18.Google Scholar

17 This move is exemplified in passages such as the following: “Social relations and world views become inseparable.” Trubek, “Action,” at 592. “Karl Klare states this pro gram with clarity. He describes capitalist society as a ‘constructed totality’ in which ideas, institutions, and power relations interact in complex ways.”Id. at 589. See also Id. at 609.Google Scholar

18 Harrington & Yngvesson at 140.Google Scholar

19 “In this new [interpretive] model, changes in ideas do not cause changes in behavior nor do changes in behavior cause changes in ideas. Rather, social actors apply (or attempt to apply) dispositions or meaningful patterns of action in changing situations…. [S]ince dispositions are open to adaptation, and since they may be more or less suited to dealing with a new type of situation, the resulting interaction may produce changes in actors' habits. Hence, while dispositions provide an initial structuring of life activity, they are subject to change.” Trubek & Esser at 18. Note that the “disposition” metaphor incorporates not only the second conceptual move out of instrumentalism but also the first. It combines “meaning” and “behavior” in a common social phenomena: habitual practices.Google Scholar

20 Trubek & Esser at 20.Google Scholar

21 Id. at 40.Google Scholar

22 Id. at 24.Google Scholar

23 Id. at 20. This. position is present as well in Trubek's 1984 article: “Taken broadly, legal consciousness includes all the ideas about the nature, function and operation of law held by anyone in society at a given time. Legal consciousness incorporates and is largely shaped by, but is not limited to, the ideas held by the legal profession: Public understanding and evaluation of law is as much a part of our legal consciousness as are the most refined views of the most eminent scholars or the most comprehensive decisions of the Supreme Court.” Trubek, “Action,” at 592 (cited in note 2).Google Scholar

24 Trubek & Esser at 41–44.Google Scholar

25 This is achieved, they suggest, by involving subjects in the reformulation of research questions and by the active involvement of subjects in shaping the research process. Harrington & Yngvesson at 148.Google Scholar

26 Id. at 114.Google Scholar

27 Id. at 147.Google Scholar

28 Id. at 148 (citation omitted).Google Scholar

29 Sarat, Austin, “Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law,” 15 Law & Soc. Inquiry 155, 161 (1990) (“Sarat”).Google Scholar

30 Id. at 165–66.Google Scholar

31 Trubek, , “The Handmaiden's Revenge: On Reading and Using the Newer Sociology of Civil Procedure,” 51 Law & Contemp. Robs. 111 (1988);“Back to the Future: The Short, Happy Life of the Law and Society Movement,”Fla. St. L. Rev. (forthcoming).CrossRefGoogle Scholar

32 Trubek & Esser at 11 & 36.Google Scholar

33 Harrington & Yngvesson at 144.Google Scholar

34 Id. at 145.Google Scholar

35 Sarat at 164.Google Scholar

36 Roberto Mangabeira Unger, social Theory: Its Situation and Its Tusk, Volume I in Politics, a Work in Constructive Social Theory 15–16, 159–60 (Cambridge: Cambridge University Press, 1987). For a discussion, see Trubek, David M., “Review Essay: Radical Theory and Programmatic Thought,” 95 Am J. Sociology 447–52.Google Scholar

37 Sarat at 165–66.Google Scholar

38 Harrington & Yngvesson at 147.Google Scholar

39 Sarat at 163; Harrington & Yngvesson at 148.Google Scholar

40 Villmoare, Adelaide, “Politics and Research: Epistemological Moments,” 15 Law & soc. Inquiry 153 (1990).Google Scholar