Socio Empirical Legal Research

Cardiff University
Law's Empire: Socio-Legal Empirical Research in the Twenty-First Century

Author(s): Paddy Hillyard
Source: Journal of Law and Society, Vol. 34, No. 2 (Jun., 2007), pp. 266-279
Published by: Wiley on behalf of Cardiff University
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JOURNAL OF LAW AND SOCIETY

VOLUME 34, NUMBER 2, JUNE 2007
ISSN:
0263-323X,
Law's
pp.
266-79
Empire:
Socio-legal Empirical
Twenty-first
Century
Paddy
Hill
Research
in the
yard*
a description
section of this paper provides
of the main
and
the
the
recommendations
report of
of
Nuffield Inquiry on
findings
Hazel
conducted
Research,
Genn,
by Professors
Empirical
Legal
Martin Partington,
Adler also
and Sally Wheeler. Professor Michael
a paper specifically
on research
training, and the section
published
also draws upon some of his analysis. The second section gives more
some data on the increasing
context
to the report by presenting
our
into
all
lives. The third section takes a
law
aspects of
penetration
of
a
and suggests
critical look at the recommendations
that developing
The first
research
capacity
in empirical
socio-legal
research
is not going
to be
easy.
INTRODUCTION
At a time when law's empire is steadily expanding,
there is a major crisis in
to
the capacity of socio-legal
studies
produce high quality rigorous qualita
tive and quantitative research into all aspects of the law. In 2004 the Nuffield
Foundation
funded an inquiry to investigate the issue. The final report of the
were published
in November
2006.l A
Inquiry and its recommendations
concern
academics. At a seminar in
is the age profile of socio-legal
major
of
2005 on Education and Training, Professor Ian Diamond, Chief Executive
on
the number of
the Economic
and Social Research Council, presented data
due
academics
* School
Belfast,
to retire within
the next
ten years.
Social Policy and Social

of Sociology,
BT7
Ireland
INN, Northern
Belfast
It showed
Work, Queen's
that
in
University
our
in the Real World:
M. Partington,
Law
and S. Wheeler,
Improving
Law Works,
and Recommendations
Final
(2006).
Report
Understanding
of How
can be obtained
at UCL
and a pdf
from Lisa Penfold
(lisa.penfold@ucl.ac.uk)
Copies
can be downloaded
at <http://www.ucl.ac.uk/laws/
from the Inquiry website
version
1 See H. Germ,
inquiry>.
266
? 2007 The Author. JournalCompilation ? 2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street,Maiden, MA 02148, USA
studies
disciplines, which have traditionally been associated with socio-legal
- over a
law, social policy, and sociology
quarter of lawyers, nearly 30 per
cent of social policy academics, and some 37 per cent of sociologists will be
and
retired by 2012.2 In a very few years, many of those who established
studies will therefore probably be sitting in
sustained empirical socio-legal
or Adriatic
sun sipping a C?tes de Provence, a Chianti or
the Mediterranean
a Primitivo - or perhaps all three.
The Inquiry was conducted by three distinguished
scholars
socio-legal
Professors Hazel Genn, Martin Partington, and Sally Wheeler.
During their
Professor Michael
another distinguished
deliberations,
Adler,
socio-legal
a
on
research training.3 The first section
scholar, published
paper specifically
a description
of the Inquiry's main findings
of this paper provides
and
recommendations
and also draws upon some of Adler's analysis. The second
some data
section provides a little more context to the Report by presenting
on the increasing penetration of law into all aspects of our lives. The third
section takes a critical
look at the recommendations
and suggests
that
a
in
research
research
is not going
developing
capacity
empirical socio-legal
to be easy.
AIMS OF THE INQUIRY, THE LACK OF CAPACITY, AND

RECOMMENDATIONS
The
specific
aims of the Inquiry were
to:
Provide factual information

about current capacity for empirical
legal
research among lawyers and social scientists, particularly
in relation to
non-criminal
law and processes;
the
evidence
for a shortfall in capacity to undertake empirical
Explore
research;
legal
Explain the causes of the problem including incentives and disincentives
for conducting empirical legal research, drawing on overseas experience;
in legal education, training, funders, users
Bring together key stakeholders
to develop a shared understanding
of research, and policy makers
of the
issues and to identify where concerted action is possible;
solutions; and
Identify a range of possible
Make recommendations
for a programme of initiatives designed to secure
the future of empirical
legal research.
The report begins by pointing out the key role that empirical socio-legal
in civic, political,
has played
and academic
it has
life and ways
informed a wide range of government
and other bodies as to how the law
studies
id., p. 12.
3 M. Adler,
'Recognising
the Problem:
Socio-Legal
Research
Training
in the UK'
(January 2007).
267
? 2007 The Author. JournalCompilation ? 2007 Cardiff University Law School
in practice. It suggests that it has been invaluable

in 'revealing and
the practices
and procedures
of legal, regulatory,
redress and
explaining
on a range of
dispute resolution systems and the impact of legal phenomena
It anticipates
that demand
social institutions, on business and on citizens'.4
as
for this type of work is likely to expand
busi
Parliament,
government,
research to
nesses, and NGOs appreciate the importance of evidence-based
works
of justice, and
inform the development
of substantive
law, the administration
the practice of the law. The report further recognizes
the important role that
of law
socio-legal
empirical work has played in the theoretical understanding
as a social and political phenomenon.
The focus throughout the Inquiry was on empirical research into law and
legal processes, defined as 'the study through direct methods of the operation
in society'.5 Moreover,
and impact of law and legal processes
the terrain of
criminal law and processes
the Inquiry was further restricted by excluding
a lot more
because, unlike other areas of law, these areas had witnessed
funding of empirical research and have a much stronger empirical research
capacity.
The Inquiry lasted for over two and half years and included launching a
numerous meetings
and seminars,
and an email
consultation
document,
the response to the survey was very
survey of over 400 academics. Although
of the current cohort
low, if it is assumed that itwas broadly representative
of active empirical researchers, over three-quarters of whom are located in
7 per cent in criminology/criminal
law departments,
justice, 9 per cent in
a
the Inquiry collected
and 3 per cent in social policy.6 Finally,
sociology
from experienced
number of biographical
legal researchers.7
pen-portraits
studies
reading and show how entry to socio-legal
They make fascinating
a chance relationship with an established
was often serendipitous:
scholar
was often very important.
to
of evidence
The report draws upon a number of different pieces
it notes that the
illustrate the current lack of capacity. To begin with,
to the ESRC in the field of socio-legal
studies has
number of applications
trend.
low and there now appears to be a downward
remained consistently
funders report on the lack of interest in tenders for socio-legal
Second,
research. Third, there appears to be a lack of interest in empirical
legal
The Socio-Legal
in general within
the socio-legal
research
community.
a
now has about 400 members,
Studies Association,
which
produces
an
interest in empirical legal
interests, yet few record
directory of members'
conferences
in their profiles. Moreover,
of the
research
the annual
which provide perhaps the best barometer of the current state
Association,
a preponderance
'demonstrate
of
in socio-legal
of scholarship
studies,
4 Genn
6
et al.,
id., p. 3.
id., p. 13.
id., pp.
op.
cit.,
n.
1, p.
1.
16-26.
268
? 2007 The Author. Journal Compilation ? 2007 Cardiff University Law School
and textual analysis rather than theoretically

informed
purely theoretical
legal research.'8
empirical
This lack of capacity is noticeable
in all parts of these islands. An obvious
lack was witnessed
recently inNorthern Ireland shortly after the setting up the
NI Legal Service Commission.9
It issued a research brief to a number of
to
researchers
carry out a survey of legal need in Northern
experienced
Ireland but it received only one response and none from any legal or social
policy academics.10 A more
important example of the lack of empirical
9/11, 7/7, and 21/7,
capacity relates to the current 'war on terror'. Following
there is a very real need for legal scholars to be monitoring
the use and abuse
of anti-terrorism
legislation. All the extensive
empirical evidence collected
the
Ireland has shown that the use
thirty years of conflict inNorthern
during
of emergency
the problem11 and there is
powers can sustain and maintain
evidence
that the new anti-terrorism
laws are creating widespread
already
anger within the Muslim
community which may encourage more violence.12
there has been an expansion in 'terrorism studies', as far as I am aware,
While
there are few socio-legal
scholars doing the work on the streets collecting and
collating the information from lawyers, community activists, and individuals.
The capacity problem
to improve in the near future. In the
is unlikely
assesses whether
2006 ESRC
exercise, which
recognition
departments
the appropriate
provide
training and support for ESRC funded doctoral
in socio-legal
studies applied for recognition,
students, very few outlets
absences
included some of the major centres of socio
indeed, noticeable
that:
legal studies. Adler concludes
where
particularly
the link between
training,
on
research
out in law schools,
is carried
empirical
socio-legal
on the one hand,
research
and scholarship,
and postgraduate
the other,
is poorly
developed.13
The socio-legal panel recommended

that four of the twelve outlets should be
- a success rate
full
of only 33 per cent. Adler commented:
given
recognition
Most
of the socio-legal
schools
unable
been
available,
effectively
services':
Legal
outlets
a
lacked
to access
available
8 id., p. 9.
9 This was
10 NI
which
advanced
elsewhere
in 2003
established
and priorities
meets
their
Access
Services
set...)
'critical
that failed
mass'
to obtain recognition were
of
that may
training
in the institution.14
needs,
to Justice
(NI) Order
Minutes
Commission,
British
have
2003.
of a meeting
held
of Justice
on
5 December
(CAJ), No
No Emergency Law (1995).

See: F. Ansari,
13 Adler,
op. cit.,
14 id., p. 7.
well
for the purpose

of 'securing
the resources
made
(within
that individuals
to civil legal services
have access
that
and promoting
the availability
to individuals
of such
<http://www.nilsc.org.uk/publications.asp?on=publications>.
11 See, for example,
on the Administration
Committee
12
law
or were
researchers
socio-legal
in research
methods
Anti-Terrorism:
A Modern
Day
Witch-Hunt
2004,
at
Emergency,
(2006).
n. 3, p. 6.
269
The report suggests that there are a number of interacting factors which go
is to
to explain the lack of capacity. The imperative of all law schools
practice
produce skilled doctrinal lawyers. The requirements of professional
curriculum and the type of
place very real constraints on the undergraduate
staff who can be recruited. The report suggests that there is little or no room
for research training courses similar to those in other social sciences and
Even if
required to complete a dissertation.
rarely are law undergraduates
they do one, it is unlikely to involve empirical research. There is, therefore,
an absence of scholars who are competent
to supervise empirical work and,
in any event, law postgraduates, who have been taught little or nothing about
empirical research, are naturally drawn to doctrinal work. Hence there is 'an
inevitable pattern of self-replication'.15
Another very important factor which the report discusses at some length is
It suggests that it is a culture characterized
the culture of legal scholarship.
as part of a team,
to working
by the lone researcher who is not accustomed
and
been physically
have
and law schools
themselves
traditionally
this
in the social sciences. Within
isolated from colleagues
intellectually
in
is on 'doctrine and normative questions
culture, the dominant emphasis
almost
'the energy of many legal academics

and this has directed
legal scholarship'
more
towards shaping legal reasoning and rather less toward influencing
policy and practice.'16 Textual analysis and the quick production of journal
the scholarship.
articles and legal textbooks has therefore characterized
to the Inquiry, captures the influence of
in a submission
Professor Hadden,
legal culture well when he notes:
Most
who
researchers
for
look
and
law schools
through
the ratio decidendi
have
been
underlying
trained
to
judicial
in difficult or borderline cases at appeal level rather than their impact
decisions
in run-of-the
cases.
mill
on
concentrate
how
come
have
the principles
analyse
work
survey
empirical
When
theoretical
these
in his analysis
Adler,
forces.
linked to market
schools, and law schools
in socio-legal
studies. As
will
on
they embark
and normative
assist
research
issues
they typically
projects
to see
it difficult
and find
them.17
of the problem, suggests that it is a structural issue

are located in law
researchers
Most
socio-legal
an
to
lack
incentive
training
develop postgraduate
he puts it:
The costs are too high and the rewards too low when compared with the 'rich
pickings' that can result from attracting overseas students to take taught
on
courses
Master's
subjects
will
that
enhance
students'
professional
careers.18
In short, the market
15 Genn
16
et al.,
op.
place
cit.,
discourages
this type of scholarship.
n. 2, p. 29.
id., p. 31.
17 id.
18 Adler,
op.
cit.,
n.
3, p.
11.
270
The report suggests that the lack of capacity in social science departments
has different roots. The main problem suggested is that the study of law and
legal phenomena has never been a major focus of social science scholars and
that it is becoming
there is some evidence
less so because of the decline in
as
Social
science
such
social policy and anthropology.
certain subjects,
know little or nothing about the law and legal institutions,
undergraduates
the social
of a shift in the substantive
interests within
partly because
in another
sciences. Professor Fielding,

it in the following way:
social
Younger
social
structure,
a major
matters
research
previous
element
seem
scientists
power
and
social
in constituting
to
submission
lack
the
that
class
interest
lead one
to the Inquiry, describes

in the
very
critical
quickly
society as it is. Sociology
matters
to the
of
law as
has turned from
a great deal of
to matters
For example,
of consumption,
of production
use mobile
to how
is now
If a
attention
given
people
telephones.
on
the
had
had
those
issue
would
have
been
how
devices,
generation
they were
socially distributed, Now
the issue is how they are decorated.19
report also identifies a number of external factors which have con

to the lack of capacity. One crucial factor has been the lack of
in research in the non-criminal
and sustained investment
law
coordinated
in
criminal
and
the
field. Unlike
work
law
where
Home
empirical
justice,
Office has had, since the early 1970s, a large and relatively stable budget to
in the
fund research, there has been no comparable government
investment
from
the
civil law. There has been no ring-fenced
Nuffield
apart
funding
to Justice programme - and legal researchers
Foundation Access
interested
in civil law and justice compete with other disciplines
for research grants
from funding bodies. As a consequence,
there has been nothing to encourage
a cohort of academics
to focus on this area. Associated
with this lack of
no
there
is
data on
maintained
basic
administrative
investment,
centrally
The
tributed
in contrast to the numerous databases which are now

civil justice matters
and criminal justice.
available on crime, policing,
to overcome
The Inquiry team make two broad sets of recommendations
a wide range of imaginative
the capacity problem. First, it recommended
and grants to encourage and support empirical socio
bursaries, fellowships,
The
leave and undergraduate
research.
include research
legal
proposals
studies
and
bursaries, post-doctoral
empirical legal
empirical legal research
research
and
fellowships,
legal
studentships,
empirical
postgraduate
the necessary
dedicated grants for short courses. Developing
funding poses
a significant challenge but it is suggested
that it can be met by individual
funders such as the ESRC, AHRC and charitable funders either acting alone
or in partnership.20
The second broad set of recommendations
heads of law and social
Vice-Chancellors,
19 Genn
20
id., pp.
et al, n.
39^2.
is addressed
science
at stakeholders:
departments.
Here
the
1, p. 33.
271
the proposals are couched is more hesitant and deferen

language in which
tial. It is suggested
that 'VCs might view
the creation and support of
expertise as a long term strategic investment'. Heads of law departments,
in empirical legal research, 'might
who wish to foster a centre of excellence
...
to consider whether offering an option on law in society
be encouraged
a
to
ensure
foster
abut how to
might be useful',
'may wish
dialogue
can take account of their research',
to
researchers' workloads
'may wish
consider how to stimulate and encourage staff to be more active in applying
for research funding',
'may want to consider how to shift the balance towards
a greater degree of research income',
'may wish to consider collaborative
social science departments',
and 'some law
teaching arrangements with
schools may wish seriously to consider whether they want to become a centre
in fostering empirical
of excellence
legal research'21 (italics added). In only
one place does the language get more assertive:
Heads of law department are in a position to provide leadership in encouraging
the
in the undergraduate
inclusion
in positively
methods,
into
the
ment
of
reading
courses
students
to adopt
for
core
and
a more
curriculum
of modules
on
supporting the penetration of empirical

and optional
courses,
research
dissertation
contextual
perspective
empirical
legal
legal material
and in facilitating
the develop
that would
encourage
options
to their study of law.22
some of
to deal with
Adler puts forward five proposals
the problem,
which are similar to those put forward by the Inquiry. First, a competition
should be set up inwhich established
researchers would compete
socio-legal
for a special quota of five or six ESRC awards each year. This would
researchers.
provide, over a five-year period, some 25-30 trained socio-legal
itself should provide subject specific training in research
to the
to contribute
law schools
should be encouraged
Third,
researchers by collaborating
with other areas and
training of socio-legal
A quota of awards could be allocated
to recognized
disciplines.
training
across law and another social science discipline. Fourth, CASE
programmes
the requirement
for a dedicated
awards, without
postgraduate
training
to
be
could
introduced
better links between
law
programme,
encourage
a
new
schools and outside organizations.
Fifth,
post-doctoral
fellowship
the ESRC
Second,
methods.
scheme
could be established
inwhich
the fellowship
was
linked to a teaching
post.
the Inquiry team have done a great service to the socio-legal

to identity and elaborate on the nature of the problem and in
community
a
to create a 'critical mass' of empirical
number of recommendations
making
I will now turn to the one lacuna in the report, the
researchers.
socio-legal
Overall,
lack of any information
21
id., pp.
22
id., p. 44.
on law's expansion.
43-44.
272
LAW'S EXPANSION
be pointed out that it is a little ironic, for a report
studies to conduct research
the empirical capacity of socio-legal
investigating
no
to
data on what is happening
into all aspects of the law, that it provides
to the report,
in a foreword
law in the real world. Professor Richardson,
points out; 'society spends more time "doing law" and law gets involved in
more and more aspects of our lives'.23 Yet, the report itself does not provide
any data on how law is getting involved in 'more and more aspects of our
lives'. It is therefore illustrative to consider just two areas: the growth in
trained legal personnel and the increase in the volume of statute law.
In 1974 there were
has been phenomenal.
The growth of the profession
28,737 solicitors holding practising certificates24 compared with 104,543 in
- an
increase of some 236 per cent. In 1970 there were 2,518
200625
At
it must
the outset,
to
barristers. By 2006 the number of barristers had expanded
practising
- an
increase of 456 per cent.26 The growth of the Bar has therefore
14,000
much greater than the number of solicitors. Another
been, proportionately,
to the population.
If the two
way of looking at the figures is in relationship
are added together the number of lawyers per head has increased
professions
in the early 1970s to 22 per 10,000 in
10,000 of the population
in the same period the number of police
By way of comparison,
in England and Wales has increased slightly from 22 to just over 26
per 10,000 of the population.
Similar increases can be seen in law schools both in terms of the number
each year. In 1966 it is
of staff and the number of graduates produced
in just 25 law schools.28
estimated that there were 614 full-time academics
from 6 per
2006.27
officers
to 3,845 and the number of

the number had increased
By 2004/2005
law had grown to 104.29 As regards
institutions with
students studying
a mere
in the United
in 1938 there were
1,500 law students
students,
this figure had grown to 62,730 undergraduates
By 2004/2005,
Kingdom.
of both staff and students has
The composition
and 23,925 postgraduates.30
23
24
id., p. iii.
See Law Society,
Trends
in the Solicitors
'
Profession,
Annual
Statistical
Report
2004
Trends
in the Solicitors
'
Profession,
Annual
Statistical
Report
2006
(2005) at 6.
25
See Law
Society,
(2007) at 11.
26
Law
1970
List,
home.cfm>.
1980
and
The
Bar
Council,
<http://www.thebardirectory.co.uk/
27 The legal profession iswell represented inParliament. In 1987 therewere 88 solicitors

some
14 per cent of all MPs.
of Commons
forming
They
11.7 per cent of all MPs.
the
number
of barristers
has been
Interestingly,
of solicitors
but the number
elected
has risen.
declining
becoming
and barristers
currently
steadily
28 J.Wilson, A
29
1966)
HESA
30 HESA,
in the House
form
9 J.
of
First Survey of University Education in the United Kingdom'

the Society
of Public
of Law
communication.
Teachers
(1965
1, at 26.
2005/2006,
personal
figures
at <http://www.hesa.ac.uk/holisdocs/pubinfo/student/subject0405.htm>.
273
in terms of gender balance,

social class, ethnicity,
changed
radically
and social composition
and no one can dispute that the teaching
nationality,
community has been globalized.31
The growth in the volume of statute law has also been considerable.
Since
coming to power in 1997 New Labour have introduced over 400 Acts of
Parliament
14 per cent of the total
containing over 23,000 sections. About
acts passed have dealt principally
with
law and order issues including
policing and criminal justice. In addition, 31,790 Statutory Instruments have
been made by government
and United Kingdom
in
authorities
departments
the period. This works out at about two for every hour New Labour have
been in power. While more acts were enacted in previous periods, they were
shorter. For example, in an equivalent-length
period, 1931 to 1940, over 500
acts were passed but they contained
under 5,000
sections. The bound
volumes occupy less than two feet of shelf space compared with over five
feet for statutes passed under New Labour.
This very selective picture suggests that law is indeed playing an increas
- a
shift which would deserve
ing role in the social ordering of modern society
an empirical study. More and more aspects of our lives are being subject to
legal regulation or restraint. The need for high quality and rigorous empirical
research to investigate
the form, substance,
and operation of the law in
modern
society could not be greater. At the same time, it is clear that legally
trained personnel are playing an expanding role inmodern
society and more
is needed to understand not only the work they do but to analyse the
impact that legal training and thinking may have on different areas of life.
research
FUTURE PROSPECTS FOR EMPIRICAL SOCIO-LEGAL RESEARCH

In this final section of the paper, Iwish to develop two arguments to suggest
that the development
of a critical mass of socio-legal
research is likely to be
to
difficult
achieve. First, the culture of existing
is very
legal scholarship
entrenched and would require a fundamental shift in ontological and epistemo
the changing
of higher
Second,
economy
logical assumptions.
political
to
have far reaching and unpredictable
education is likely
implications.32
31
P. Thomas,
Then
and Now'
The Law
(2006)
'Legal education:
have
the working
how far these personnel
transformed
changes
to debate.
eminent
working
to have
32
In many
Teacher
239-53.
environment
law schools,
walls
lined with
oak-cladded
are still common.
the Queen
The
creation
of a neutral
as well
as those from other cultures
environment
for women
does not appear
one still hears
been a top priority. Moreover,
that there has been
stories
little
room where
seats are still
in the territorial
of the senior common
imperative
white
men
of the older
But
is open
of
pictures
and
change
to be the preserve
of white
senior male members
perceived
not to be used by others.
and J. Sim,
'The Political
of
See P. Hillyard
Economy
ed. P. Thomas
45-75.
Studies,
(1997)
Socio-Legal
of the department
Socio-Legal
and
Research'
274
are
in
is characterized
The report notes how legal scholarship
by the lone
close textual analysis of legal material. But it does
researcher undertaking
not explore the ways inwhich this form of research is very different from the
the social sciences, the focus
research carried out by social scientists. Within
or
on
use
to explain
of
either
inductive
methods
the
deductive
of research is
or understand some selected social phenomena. The researcher is perceived
either as independent and objective or intimately part of the construction of
to the latter, the crucial characteristic
In relation
of the
knowledge.
on
are
to
extent
to
is
that
trained
reflect
the
which
their
researchers
they
their understanding
affects
of the phenomenon
position
so
under study. In contrast, the aim of
much legal scholarship is to influence
system. The aim
legal reasoning and produce clarity using a self-referential
not
to
of
the
is
further the understanding
phenomena of law, legal institutions
a range of quantitative
or processes
and qualitative
research
using
insider/outsider
methodologies.
In the past, doctrinal
ducted
in law schools
on research,
emphasis
the type of research con

but partly because
of the RAE and the greater
in the type of
there has been a transformation
scholarship produced by legal scholars. It now includes critical legal theory,
sociology of law, feminist theory, queer theory, law and literature, and socio
there are two
legal studies, forming a rich quilt of new scholarship. However,
new
of much of this
work. First, it is still based on
important characteristics
on
an
textual analysis focusing either
existing body of scholarship or legal
on
material.
ideas and
Second, it draws heavily
postmodern/poststructuralist
concepts. Foucault's
footprints are to be found over so much of the literature.
are not accidental. They have a strong materiality
in the
These characteristics
culture of traditional legal scholarship with its emphasis on textual analysis
research
has dominated
and doctrinal and normative questions.

In effect, legal scholars have not had
a major
to make
in their training or their thinking. A further
transition
of this form of scholarship
is that there is no need to make
advantage
or
validity of data in the absence of any rules
judgements about the reliability
to judge one interpretation over another. Moreover,
the perspective
does not
on
moral
and political
issues. We have lost, as
require any judgements
has pointed out, 'all sureness of political
discrimination'.33
and
is, therefore, convenient,
comfortable,
Postmodernism/poststructuralism
fits alongside
traditional legal scholarship. The comfort zone provided by
this framework and perspective will make it even more difficult, I suggest, to
to take up empirical
It will
work.
encourage
legal scholars
socio-legal
a
at
in
the
fundamental
shift
the
heart
of
require
assumptions
legal training.
Gillian
Rose
Much of this new form of scholarship

is closer to the work carried out in
the humanities and itmay be that in future closer links will be made between
law and humanities
rather than with the social sciences. Indeed, Bradley has
33
G. Rose,
Dialectics
of Nihilism:
Post-Structuralism
and Law
(1984)
337.
275
argued that law and literature should be part of the undergraduate

syllabus in
order to subvert the narrow vocational
of law students and to
perspective
It would, he
the views stemming from their narrow backgrounds.
challenge
argues, introduce them to different ideas and cultures, promote imagination,
a different way
and provide
of thinking about the world.
them with
it would bring a little passion
into liberal legal education and
Moreover,
and politics which,
provide the space to deal with questions about morality
he notes, are at the heart of law.34
POLITICAL ECONOMY
reason why
to increase the capacity

it might
be difficult
of
research relates to the political
of higher
economy
empirical
socio-legal
in the report to the RAE, other
education. Apart from a brief reference
the commodification
aspects of the changes impacting on higher education
and privatization
of knowledge,
the increased marketization
and the new
of academics
and the associated displacement
in university
managerialism,
- are not
discussed. Yet there is now an extensive discus
decision making
The
other
within
the international
around
the possible
legal community
for both research and teaching of these changes.35
implications
and privatization
of knowledge
is increasingly
The commodification
life. As Collier has expressed
it, there is
seeping into all areas of university
an explicit redirection, experienced
at all levels of the institution, towards an
intensified emphasis on the capitalization
of learning and
and exploitation
sion
The imperative
to make
and the opportunities
'knowledge
practices'.36
In the social sciences and law where
vary in different disciplines.
money
can be commercialized,
are
there is no obvious product which
academics
to be more relevant to the needs of business and to raise more
encouraged
research money. This latter imperative may, however, help boost empirical
legal research if heads of law schools allow for 'buy outs' and are flexible
with teaching loads. With full-economic
costing, there is now no economic
reason not to allow for these developments.
'An
34 A.
Bradney,
International
35
For
Educational
an excellent
the Restructured University

Modern
Law
for
Ambition
"Law
and
343-55.
of the Legal Profession
see R. Collier,
of these changes,
overview
J.
Rev.
475.
'The Liberal
and the Paradox of Socio-Legal

is a review
This
Literature"'
article
of A. Bradney,
(2000)
Law
Studies'
School,
(2005) 68
Choices
Conversations,
and Chances: The Liberal Law School in the Twenty-First Century (2003). For the
has adversely
economy
political
a "Stain upon
the Silence":
44 Brit. J. ofCrim.
(2004)
the Powerful:
Crime,
Contemporary
way
'Leaving
Dissent'
in Unmasking
36
Collier,
the Crimes
of
on criminology,
see P. Hillyard
et al.,
and the Politics
of
Contemporary
Criminology
and D. Whyte,
S. Tombs
369-90;
'Scrutinizing
and Critical
Political
Social Research,
Economy
impacted
the Powerful,
eds.
S. Tombs
and D. Whyte
(2003).
id., p. 478.
276
increased impetus from

of higher education received
The marketization
in early 2003.37 Research,
it argued,
the landmark White
Paper published
must be 'financially sustainable' and universities must demonstrate
that they
was
are operating
The message
loud and clear.
'sustainable businesses'.
Universities
had to rely less on state funding and more on income from
In such an environment,
and exploitable knowledge.38
students, businesses,
are
even
to
to support socio-legal
law schools
be
less inclined
going
to
produce good income streams compared
scholarship because it is unlikely
courses in inter
with, for example, as Adler has pointed out, postgraduate
are
national professional
already influencing
legal education. These demands
decisions about the type of staff required for these developments
that this has for recruitment and retention
related implications
school
with
'all the
strategies
and
cultures'.39
to take a more radical

The dynamics of the market may force departments
now
stance in the light of the threat
posed by private consultancy firms. Over
to these firms
the last few years the government
has turned increasingly
to carry out research. This is explained
rather than universities
by two
factors. First, private consultancy
to
firms are in a much stronger position
to tenders than university
research centres.
respond quickly and effectively
can impose much tighter controls over the owner
Second, the government
ship of the work carried out, and in any event, private consultants are far less
likely to resist attempts to cherry pick the findings as it may affect their
future tendering prospects. To challenge
the power of private consultants,
some departments may therefore follow the market and establish research
to replace research centres. This may
increase the amount of
companies
empirical social research but it is unlikely that itwill be either independent
or critical.
At the moment
law schools, because of the high demand from home and
overseas
income streams compared with
students, have relatively healthy
many other subjects. But this could change suddenly. There is already an
of law graduates.40 This may lead to demands from within
the
over-supply
student body for a broader
law school curriculum which
could include
research methods
and other social science subjects so that law graduates
more
would be
marketable.
Some of the more enterprising
law schools may
offer students the option to intercalate to obtain an Honours BSc as well as a
37 DES, The Future of Higher Education (2003; Cm. 5735).
38
39
40
an analysis
of its focus, proposals,
and implications
for socio-legal
studies,
'The
Future
of Higher
Education:
"Sustainable
Research
Businesses"
Bibbings,
40 Socio-Legal
1.
Newsletter
"Exploitable
Knowledge"'
(2003)
For
Collier,
op.
For example,
supply
at
marketplace
cit., n. 35, p. 490.

the principal
mechanism
the moment
and
is to warn
that obtaining
that the Law

law
students
a LPC may
see L.
and
to use to control
appears
is a highly
competitive
them a training contract.
See
Society
that law
not guarantee
<suppluhttp://www.prospects.ac.uk/downloads/documents/LCAN/Resources/
1 .pdf>.
becominglpclawcabsnote
277
legal qualification.41 What happens to professional

professional
legal educa
in universities
It is possible
tion more generally
is open to question.
that
some private company will design and market
all the modules
for the
professional
training, which could pose a real threat to law schools. Whether
such developments
would encourage more empirical research because of the
or
streams
it because of the need to do other activities to
funding
discourage
survive is all a matter of conjecture.
The third development
the increased managerialism
is already having
a profound
on
the
the restructuring
academics
work.
way
impact
Following
of many universities, with the abolition of faculties and the creation of large
in the running of universities
the role of academics
has been
schools,
while
the
and
of
reduced
influence
has
managers
power
substantially
not
has
increased. The new managerialism,
affected
universi
however,
only
ties but all walks of public life.42 It has, as Stuart Hall has argued, replaced
and control by the wholesale
importation of micro
of
and value
audit, inspection, monitoring,
efficiency
practices
now
to
It
is
difficult
for
academics
articulate
very
public roles
for-money'.43
as they have been increasingly displaced by an
or public interest objectives
to "entrepreneurial
who
'army of managers'
'spread a climate favourable
their own kind of
ism".' In such a context, Hall argues, everybody becomes
judgment
'professional
management
as the
criteria become
entrenched
'manager' and 'the market and market
and institutional life'.44 The subtlety of the
modus operandi of "governance"
life by changing
change is that it is slowly altering the culture of university
It is also changing wider cultural
the practices rather than changing minds.
values to produce a new 'habitus' in which a new common sense embraces
the habits
and practices
conception
of
which
"governance"
'the "free market",
and consumer
focus
requires'.45
in a rigorously
researched
and highly
readable book,
current
that law
tide
of
which
the
suggests
scholarship
against
are being radically transformed by these developments.46
He argues
in law schools is infinitely better than in the past, irrespective of
and gender. While much is still to be done,
race, sexuality, class background,
to
is supported, he argues, it is possible
if the ideal of a liberal education
Tony
paddles
schools
that life
41
For
Bradney,
to intercalate
to medical
is already
offered
the opportunity
See
University.
<http://www.qub.ac.uk/cm/med_curr/handbook.pdf>.
example,
Queen's
42 Managerial
who
tried
discourses
to hire
are now
a hitman
even used
recently
students
A babycare
in the planning
of murders.
tycoon
her ex-partner
had drawn up a blueprint
to kill
the following
headings:
'Background,
including
1March
and Timeline'
2007,
thelondonpaper
Goals,
Strategy Deliverables,
at <http://www.thelondonpaper.com/cs/
Satellite/london/lcsearch/article/1157145747039?packedargs=suffix%3DArticle
Controller^
43
S. Hall,
44
id., p.
'New
Labour's
double
shuffle'
(2003)
24 Soundings
17.
18.
45 id.
46
Bradney,
op
cit.,
n. 35.
278
Briefing
in
make
draws
further advances notwithstanding

the hostile political
climate. He
on Foucault's
theoretical perspective
and the notion of resistance to
power to support his argument. He notes: 'notions of liberal education can
flourishes'
only flourish in the present era if the study of post-modernism
(italics added).47 It is an appealing argument and we can all concur with the
as we fill in our hundredth prior
life as 'disciplinary'
depiction of academic
another
round of appraisals,
form, complete
approval expenditure
type up
another postgraduate progress form, record our holiday plans, make guesses
at how much
to particular tasks, deal with our thirtieth
time we devoted
email of the day, and watch the pile of paperwork reach new heights on our
floors. But the problem I have with Bradney's
argument lies in his
rather than a political economy perspective.
It is
adoption of a postmodern
not only a question of being unable to resist the power of the market forces
on higher education, but the new practices are
which have been unleashed
the wider cultural values of scholarship. Hesitant
transforming
appeals to
to take steps to encourage
heads of law schools
research are
empirical
internal and external pressures
unlikely to succeed in the face of mounting
and the very real changes that are taking place in the culture of university
life.
office
CONCLUSION
service
for the socio-legal
Inquiry has carried out an important
Their report needs to be read by everyone concerned with the
community.
future of discipline.
Few would
that as a society we need the
disagree
capacity to carry out high-quality
rigorous empirical research not only to
inform policy makers but, more importantly, to further our understanding
of
the role of law and legal institutions in modern
society. How all the major
forces facing higher education will impact on the future of empirical socio
legal research is difficult to predict. I have argued that a political economy
scenario than one based on
perspective
points to a much more pessimistic
The
chal
space for critical socio-legal
postmodernism.
scholarship which
is replacing a
lenges the status quo is steadily been restricted, individualism
sense of collegiality,
and working
lives are being transformed to meet the
new demands
of managerialism
and market
this
pressures.
Hopefully,
the
Inquiry will not only prompt further debate about how to deal with
capacity problem but it will serve as a platform to raise broader questions
The
about the type of theory the socio-legal

community
adopts, the type of
research they conduct, and their role and responsibility
in an increasingly
unjust social order underpinned by law's advancing empire.
47
id., p. 47.
279

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Cardiff University

Law's Empire: Socio-Legal Empirical Research in the Twenty-First Century

JOURNAL OF LAW AND SOCIETY

Social Policy and Social

AIMS OF THE INQUIRY, THE LACK OF CAPACITY, AND

aims of the Inquiry were

Provide factual information

in practice. It suggests that it has been invaluable

and textual analysis rather than theoretically

The socio-legal panel recommended

to obtain recognition were

No Emergency Law (1995).

for the purpose

'the energy of many legal academics

in difficult or borderline cases at appeal level rather than their impact

of the problem, suggests that it is a structural issue

In short, the market

this type of scholarship.

sciences. Professor Fielding,

to the Inquiry, describes

society as it is. Sociology

has turned from

socially distributed, Now

the issue is how they are decorated.19

report also identifies a number of external factors which have con

in contrast to the numerous databases which are now

the proposals are couched is more hesitant and deferen

supporting the penetration of empirical

the Inquiry team have done a great service to the socio-legal

lack of any information

to 3,845 and the number of

27 The legal profession iswell represented inParliament. In 1987 therewere 88 solicitors

First Survey of University Education in the United Kingdom'

in terms of gender balance,

FUTURE PROSPECTS FOR EMPIRICAL SOCIO-LEGAL RESEARCH

the type of research con

and doctrinal and normative questions.

Much of this new form of scholarship

argued that law and literature should be part of the undergraduate

to increase the capacity

the Restructured University

and the Paradox of Socio-Legal

increased impetus from

to take a more radical

cit., n. 35, p. 490.

that the Law

legal qualification.41 What happens to professional

'the "free market",

further advances notwithstanding

about the type of theory the socio-legal

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