Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law

Austin Sarat

doi:10.1111/j.1747-4469.1990.tb00279.x

1 Trubek, David M. & Esser, John,” ‘Critical Empiricism’ in American Legal Studies: Paradox, Program, or Pandora's Box?” 14 Law & Soc. Inquiry 3 (1989). In the text that follows, numbers in parentheses refer to page number in Trubek & Esser.CrossRef Google Scholar

2 See Silbey, Susan & Sarat, Austin, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165 (1987). Also Sarat, Austin & Silbey, Susan, “The Pull of the Policy Audience,” 10 Law & Pol'y 97 (1988);Brigham, John & Harrington, Christine, “Realism and Its Consequerces: An Inquiry into Contemporary Sociological Research,” 17 Int'l J. Soc. L. 41 (1989).CrossRef Google Scholar

3 For purposes of this essay I will refer to Trubek and Esser collectively and individually as the Wizard.Google Scholar

4 Trubek and Esser indicate their support for sociologists of law “who have raised the banner of ‘critical empiricism’…” (at 4). While some members of the Amherst Seminar have advocated work that is both critical and empirical, no one has used the phrase “critical empiricism.” Trubek and Esser write as if Silbey and I advocate critical empiricism in “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. However, no reference to critical empiricism is contained there. The banner of critical empiricism has been raised by Trubek and Esser rather than by members of the Seminar. See also Trubek, , “‘Where the Action Is’: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575 (1984). There is an important difference between empirical work and empiricism. (This is a point most often made in the Seminar by Christine Harrington.) The former refers to efforts to gather information through observation. The latter usually refers to a distinctive theory about empirical research that members of the Seminar by and large reject. That theory has several elements. It begins by trying to rigidly distinguish empirical, logical, and evaluative statements. It holds out observational evidence as the ultimate source for identifying valid theories about the world. “To be an empiricist is to withhold belief in anything that goes beyond the actual, observable phenomena. … To develop an empiricist account of science is to depict it as involving a search for truth only about the empirical world, about what is actual and observable.” See Bas C. van Fraassen, The Scientific Image 202–3 (Oxford: Clarendon Press, 1980). See also Carl Hempel, Aspects of Scientific & nation 101–22, 173–226 (New York: Free Press, 1965).CrossRef Google Scholar

5 Early on in their essay, Trubek and Esser announce that they believe a critical sociology of law to be “desirable” (at 4). Later (at 46) they say that they “admire the work being done at Amherst… [and that] our primary aim is to call attention to this project and make a modest contribution to furthering its goals.”.Google Scholar

6 Near as I can tell, critical empiricism involves an explicit acknowledgment that “the values we advance, the perspectives we construct, and the evaluative criteria we apply are all historical; they are deeply implicated with one another; and they change over time and over space.”Id. at 40.Google Scholar

7 Universal scientism, as Trubek and Esser define it, involves the following elements: First, “[i]t presupposes a radical distinction (emphasis mine) between an external world of objects and behaviors and an internal world of consciousness” and that it is possible to describe a world outside of our consciousness. Second, it holds that the external world is the standard against which the accuracy, and the scientific worth, of such descriptive statements should be judged. Finally, it elevates method and methodological purity as the vehicle for determining “if the knowledge we hypothesize adequately describes the external world” (at 11). In fact, this conception of universal scientism has more in common with what is commonly referred to as philosophical realism than with empiricism. Empiricism is a theory of knowledge and an argument about what ought to count as knowledge; realism is a theory about the relationship between knowledge and the things to which our knowledge allegedly refers. As Dummett explains, realism is the “belief that statements … possess an objective truth-value, independently of our means of knowing it: they are true or false by virtue of a reality existing independently of us. The anti-realist opposes to this the view … that the meanings of… statements are … true only by virtue of something of which we could know and which we should count as evidence for its truth.” See Truth and Other Enigmas 146 (Cambridge: Harvard University Press, 1978). Stanley Fish defines “realism” as the belief that “[f]acts, meanings and values come from God and nature, or from the divine Nature or the external structure of rationality.” See “Dennis Martinez and the Uses of Theory,” 96 Yale L.J. 1773, 1782 (1987).Google Scholar

8 Trubek and Esser's call for purity is highlighted by Hartog, Hendrik, “The End(s) of Critical Empiricism,” 14 Law & Soc. Inquiry 53 (1989).Google Scholar

9 As I indicated above, it is not clear that anyone in the Seminar has ever championed critical empiricism.Google Scholar

10 Merry, Sally, “Everyday Understandings of Law in Working Class America,” 13 Am. Ethnologist 253 (1986).CrossRef Google Scholar

11 They suggest that Merry sees her work as filling a lacuna in science's “big picture” and seeks to assure its favorable reception by emphasizing her use of conventional procedures of investigation.Google Scholar

12 Richard Bernstein suggests that such an either/or approach to post-empiricist science reflects what he calls a continuing “Cartesian Anxiety,” namely the fear that without some fixed foundation of knowledge we will live in a world gone mad or in a world of “intellectual and moral chaos.”See Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis 18 (Philadelphia: University of Pennsylvania Press, 1983). For Trubek and Esser the fear seems to move in the opposite direction; if we do not purge all vestiges of the belief in such knowledge it will pull us back into a world of rigidity, order, and repression.Google Scholar

13 This is what I take Peter Winch to mean when he says that “we should not lose sight of the fact that the idea that men's ideas and beliefs must be checked by reference to something independent … is an important one. To abandon it is to plunge straight into an extreme Protagorean relativism, with all the paradoxes that involves.” See Ethics and Action 41 (London: Rout ledge & Kegan Paul, 1972). While I do not embrace the idea that we can establish the credibility of our descriptions by reference to “something independent,” I do share his worry about the dangers of “an extreme Protagorean relativism.”.Google Scholar

14 This definition is produced as part of Trubek and Esser's explanation of why Merry “discusses the methods of empirical investigation she used in the construction of her de scription” (at 37). Id. Yet there is very little discussion of method in Merry's article; readers are told little more than that observations were made and interviews were conducted. The methods or instruments used are unspecified, and Merry makes no claims about the reliability or validity of her findings. See Merry, 13 Am Ethnologist at 267.Google Scholar

15 I am grateful to Patricia Ewick for pointing out this confusion. See Jerome Kirk & Marc Miller, Reliability and Validity in Qualitative Research (Beverly Hills, Cal.: Sage Publications, 1986).Google Scholar

16 See Egon Bittner, “Objectivity and Realism in Sociology,”in George Psathas, ed., Phenomenological Sociology 110 (New York: John Wiley & Sons, 1973) (“Bittner, ‘Objectivity’”).Google Scholar

17 This is seen especially in their analysis of Merry's “Everyday Understandings,” 13 Am Ethnologist.Google Scholar

18 For them, as for participants in the Seminar, the problem, as Bernstein puts it, “is to find out what standards or criteria we can legitimately appeal to in assessing and evaluating what we learn.” See Bernstein, Beyond Objectivism 107.Google Scholar

19 See Trubek, David, “Max Weber's Tragic Modernism and the Study of Law in Society,” 20 Law & Soc'y Rev. 573 (1986).CrossRef Google Scholar

20 Even Habermas, who is no friend of the kind of post-empiricist social science I am advocating, acknowledges that such a position wants “to make room … for an elucidating, awakening, and, in any case, non-objectifying mode of thinking, a thinking that renounces the standard of universality and criticizable validity claims …without renouncing the authority of superior insights” (emphasis added). See Jurgen Habermas, After Philosophy: End or Trasformation? 304, 307, trans. C. Lenhardt (Cambridge: M.I.T. Press, 1986).Google Scholar

21 See Renato Rosaldo, Culture and Truth: The Remaking of Social Analysis 102 (Boston: Beacon Press, 1989).Google Scholar

22 Trubek and Esser themselves, while acknowledging the political aspects of all intellectual labor, do not seem to me to assume that it is “all politics” or to invite Machiavellianism, but others, in different contexts, all too quickly equate such an acknowledgment with nihilism and Machiavellianism. See Carrington, Paul, “Of Law and the River,” 34 J. Legal Educ. 222 (1984).Google Scholar

23 For one example see Austin Sarat, “Ideologies of Professionalism: Conflict and Change Among Small Town Lawyers,” in Robert Nelson, David Trubek, & Rayman Sobmon, eds., Lawyen' Ideals and Lawyers' Practises: professionalism and the Transformation of the American Legal Profession (Ithaca, N.Y.: Cornell University Press, forthcoming).Google Scholar

24 As Trubek and Esser say, “while dispositions provide an initial structuring of life activity, they are subject to change” (at 18).Google Scholar

25 In fact, what seems most characteristic of post-empiricist work is its recognition that the rules are not clear and its resulting effort to make public “troublesome worries … regarding the accuracy, breadth, typicality or generality of … cultural representations and interpretations.” See John Van Maanen, Tales of the Field: On Writing Ethnography 51 (Chicago: University of Chicago Press, 1988) (“Van Maanen, Tales”).Google Scholar

26 As Susan Silbey and I said, “Surely the import of contemporary theory is not that there is no “there” out there but rather that our ability to know what is there is limited.” See 21 Law & Soc'y Rev. at 168. Fish, 96 Yale L.J. at 1784, note 28, puts the point somewhat differently when he says that “The thesis of anti-foundationalism is not that there are no foundations, but that whatever is taken to be foundational has to be established in the course of argument and debate and does not exist to the side of argument and debate.” See also Geertz, Clifford, “Anti Anti-Relativism,” 86 Am Anthropologist 263 (1984).CrossRef Google Scholar

27 Quoted in Van Maanen, Tales 101. Or, as Rosaldo says in contrasting his own effort to produce post-empiricist ethnography with the work of Radcliffe-Brown, “When read in accord with classic norms, Radcliffe-Brown's account appears to be the only way of describing social reality. It is the literal thruth. My … account stands as one among a number of possible descriptions. [Yet] its accuracy matters.” See Culture and Truth at 54.Google Scholar

28 As Rosaldo puts it, such “classic norms” must “be cut down to size and relocated, not replaced.” See Culture and Truth at 62.Google Scholar

29 See Hilary Putnam, Realism and Reason (New York: Cambridge University Press, 1985) and J. Raichman and C. West eds., Post-Analytical Philosophy (New York: Columbia University Press, 1985).Google Scholar

30 See de Sousa Santos, Boaventura, “Room for Manoeuver: Paradox, Program or Pandora's Box?” 14 Law & Soc. Inquiry 149 (1989).CrossRef Google Scholar

31 Post-empiricist social science recognizes that in listening and seeing we are “already informed by a sense of what is and is not evidence, and of what, in the field of evidence, is weighty and conclusive.” See Fish, 96 Yule L.J. at 1783. See also Van Maanen, Tales 95, and Bittner, “Objectivity” at 115 (cited in note 16).Google Scholar

32 See Charles Taylor, “Interpretation and the Sciences of Man,” in Paul Rabinow & William Sullivan, eds., Interpretive Social Science (Berkeley: University of California Press, 1979). Also Maxwell, Grover, “The Ontological Status of Theoretical Entities,” 3 Minn Stud. Philosophy of Science 7 (1962). Van Maanen illustrates this convergence when he says, “The data fieldworkers come to hold are not like dollar bills found on the sidewalk and stealthily tucked away in our pockets for later use. Field data are constructed from talk and action. They are then interpretations of other interpretations.” See Van Maanen, Tales 95.Google Scholar

33 Fish, 96 Yale L.J. at 1785.Google Scholar

34 This important point is made by Christine Harrington & Barbara Yngvesson, “In terpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990). As Winch puts it, “The concepts and the criteria according to which the sociologist judges that, in two situations, the same thing has happened, or the same action performed, must be understood in relation to the rules governing sociological investigations. But here we run against a difficulty, for whereas in the case of the natural scientist we have to deal with only one set of rules, namely those governing the scientist's investigation itself, here what the sociologist is studying, as well as his study of it, is a human activity and is therefore carried on according to rules. And it is these rules, rather than those which govern the sociologist's investigation, which specify what is to count as ‘doing the same kind of thing’ in relation to that kind of activity.” Peter Winch, The Idea of a Social Science and Its Relation to Philosophy 85–86 (London: Routledge & Kegan Paul, 1958). Also Bittner, “Objectivity” at 114–15.Google Scholar

35 As Geertz describes it, the activity of doing fieldwork seems quite compatible with this understanding of science. “Whatever accurate or half-accurate sense one gets of what one's informants are ‘really like’… is … like grasping a proverb, catching an allusion, seeing a joke—or, as 1 have suggested, reading a poem.” See “From the Native's Point of View: On the Nature of Anthropological Understandings,”in Rabinow & Sullivan, eds., Interpretive Social Science at 241.Google Scholar

36 See Silbey, & Sarat, , 21 Law & Soc'y Rev. at 172. We call a scientific practice critical if it challenges the dominant paradigm.Google Scholar

37 See Israel Scheffler, Science and Subjectivity 10 (Indianapolis: Hackett Publishing, 1982).Google Scholar

38 Rosaldo, , Culture and Truth 53–54.Google Scholar

39 Indeed it may be that such a conception of science would help nurture conflict by ensuring that one's opponents are given a clear idea of what they are up against while acknowledging that there is nothing in the tool kit of science that can compel agreement.Google Scholar

40 It is not clear to me exactly what position Trubek and Esser take on the question of the politics of scientific practice. I am unable to translate the idea of “transformative politics” (at 47).Google Scholar

41 See Bittner, “Objectivity” at 114–15 (cited in note 16). Accuracy is only one of many possible standards that a post-empiricist community recognizes. Indeed, it is clear that there are many ways in which we sacrifice accuracy in communication in the service of other goals. Thus, we all put up with the information loss when an ethnographer writes up her field notes in narrative form or when a participant-observer summarizes his transcripts. For an interesting description of a comparable process in the production of maps, see de Sousa Santos, Boaventura, “Law: A Map of Misreading. Toward a Postmodern Conception of Law,” 14 J. L. & S. 279, 282–86 (1987).Google Scholar

42 Hartog provides a useful example when he imagines how participants in the Seminar might respond to the Trubek and Esser piece. See 14 Law & Soc. Inquiry at 56–57 (cited in note 8). See also Rosaldo, Culture and Truth (cited in note 21); George Marcus & Michael Fisher, Anthropology as Cultural Critique (Chicago: University of Chicago Press, 1986); Sarat, Austin & Felstiner, William, “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Soc'y Rev. 93 (1986), and Austin Sarat, “The Legal Ideology of the Welfare Poor” (unpublished paper).CrossRef Google Scholar

43 Silbey & Sarat, 21 Law & Soc'y Rev.Google Scholar

44 Id. at 169–70. They get us wrong when they argue that we reject the “accurate description of the external world through careful observation” because they assume that a rejection of universality means an abandonment of accuracy (at 43).Google Scholar

45 Santos, 14 J.L. & Soc'y at 282 makes this point in another context. As he puts it, “the distortion of reality … does not automatically mean a distortion of truth. We have assumed too lightly in the past that truth and reality are the same thing.”.Google Scholar

46 See Richard Rorty, Philosophy and the Mirror of Nature ch. 8 (Princeton, N.J.: Princeton University Press, 1979).Google Scholar

47 Where Trubek and her talk about the authority of social science, I am more inclined to think about social science as a tool in an effort to persuade.Google Scholar

48 See Hartog, 14 Law & Soc. Inquiry at 58–59.Google Scholar

49 Id.Google Scholar

50 Id. The “we” in Hartog's argument is unspecified, so I cannot assess how broad and inclusive this standard is.Google Scholar

51 Whitford, William, “Critical Empiricism,” 14 Law & Soc. Inquiry 61 (1989).Google Scholar

52 Id. at 65. As Scheffler, puts it, empirical observation is “capable of clashing with expectations and producing shock and unsettlement.” See Science and Subjectivity at 45.Google Scholar

53 Santos, , 14 Law & Soc. Inquiry at 152.Google Scholar

54 Id.Google Scholar

55 Gadamer, Hans-Georg, “Hermeneutics and Social Science,” 2 Cultural Hermeneutics 307, 316 (1975).Google Scholar

56 Trubek and Esser might answer these questions in several ways. One would be to say that they imagine, as most of us do when we write, a fragmented audience. For us they offer what they might describe as an empathetic critique. They are up-front about where their sympathies lie, and they might say that their account should be believed if it would seem to us to advance a project which they say that they seek to advance. See id. at 46. But they also say that they want to “call attention to this project.” Here they presumably imagine a wider audience for whom the utility of their account might not be enough. It is at this point that they might profitably join in supplying answers to my questions.Google Scholar

57 Perhaps not surprisingly, Trubek and Esser, in similar ways to the Merry article they criticize, inform their readers of the procedures they used in making their observations and developing their case study. They tell us that they have analyzed programmatic statements and illustrative field studies and examined sources of the Seminar's allegedly “reconstructive inspiration” (at 13). Doing these things, they are able to make yet another empirical claim, namely that the Seminar includes not one or two but “at least three [divergent] strands of thought” (at 20).Google Scholar

58 The answer to this question is obviously no since they pay careful attention to the texts produced by members of the Seminar. Yet the question of how they would want their readers to take their descriptions of those texts is unanswered.Google Scholar

59 I can find nothing that would fill the bill in either Trubek's”‘Where the Action Is’…,” 36 Stan L. Rev. at 600–604 (cited in note 4) or in”‘Critical Empiricism.’“.Google Scholar

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Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law

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