Shrinks, Priests, and Academic Soul-Searching: Epistemic Reflexivity in Socio-Legal Research

When I workshopped sketches of what would later become my PhD’s methods chapter, a professor quipped, ‘I am neither a priest nor a shrink, so why do you want me to comment on how your personal education and background influenced your research?’

What had I done? Under the somewhat presumptuous header ‘epistemic reflexivity’ (one could also say ‘positionality’), I wrote a couple of pages reflecting on how my background, experiences, and education swayed my thinking and, by extension, my research. For example, I highlighted that I went through the German legal education system and specialized in public law. Further, I disclosed the schools of thought that influenced how I constructed my research object, imbued the questions I asked, and predetermined the methods I chose. In essence, I wrote what hundreds of Socio-Legal researchers in their mid-twenties like me would say: we are somewhat impressed by constructionism, we ‘understood’ that the law is reflexively embedded into contexts, we read some Foucault and Bourdieu, and, ideally, also Butler and Crenshaw. Perhaps we even worked empirically (in my case, through qualitative interviewing) to better understand how law and social normativity work in ‘real life.’ This attempt at a transparent, 360-degree view on the interdependencies of researcher, context, and research object can be called ‘epistemic reflexivity’.

Such epistemic soul-searching is not what we typically learn in law school. Arguably, this also explains the professor’s comment at the workshop. By and large (continental) legal education presents the law as objective, legitimizes our interpretation of legal norms as methodologically rigid, and requires legal scholarship to quibble about the ‘correct’ meaning of ‘the law’. Epistemic reflexivity turns these customs on their head. Epistemic reflexivity’s premise is that research is not ‘objective’ in the pure sense of the word and that intellectual honesty demands transparency about the research’s structural, epistemological, and jurisdictional embedding. Of course, many pieces of legal scholarship concern specific, often doctrinal problems within a closed system of legal interpretation. For example, if I were to write an article about German planning and building law, disclosing that I am a German-educated public lawyer who read some Foucault would be bizarre. Yet, especially in interdisciplinary as well as international contexts, explaining, metaphorically speaking, where one comes from buttresses mutual understanding and enables intersubjectivity. Thus, exercising some epistemic reflexivity is more than an a la mode form of self-referential idleness.

Epistemic reflexivity is often associated with Pierre Bourdieu, who popularized ‘reflexive sociology’. In essence, Bourdieu used reflexivity in general and epistemic reflexivity, in particular, to highlight how societal structures, institutions, norms, recurring practices and habitus envelope individuals and construe society.

Although exercising epistemic reflexivity makes research ‘better’, not every reflection furthers the cause of reflexive scholarship. There seem to be at least two major traps one should avoid.

First, one should not overdo it. Readers do not read our work because they want to learn about us. Typically, readers read research because they want to learn about the research topic. Therefore, endless reflections on the researcher rather than the actual research may be perceived as unnecessary or narcissistic. One should remain self-critical as to what level of personal disclosure is indeed needed. Self-reflections exuding thinly veiled self-adulation rarely further the cause.

Disclosing one’s funding seems imperative, especially if it comes from foundations or other private entities. In contrast, reflections on how the researcher’s gender and sexual orientation might have influenced their research are expected only when it impacts on the research questions posed or fieldwork dynamics. However, one might generally reflect on how societal structures like patriarchy and heteronormativity sway our depiction of empirical ‘reality’ and our research thereof. Even mundane matters like street lights, which appear neutral at first sight, play out differently for different groups. ‘Safety features’ in public spaces, such as street lights, affect women differently than men. Pausing occasionally to reflect on whether one is perhaps overlooking a perspective or forgetting a relevant concern is the essence of reflexive research.

Second, one should not be superficial. If one identifies aspects that might ‘bias’ one’s research, one should unearth the downstream consequences of these. For example, simplistic references to positionality just for the sake of it are not helpful. Not being superficial means reflecting on the epistemological groundwork and performative side-effects of one’s position and language. What are the hidden premises and origins of concepts or narratives we intuitively adapt? Which ‘systems of knowledge’ cloak even the most iconic and widely used concepts – and how should one deal with iconic but, from today’s perspective, problematic epistemes and authors? How to handle such challenges remains contingent on the researcher and the specifics of the research project.

So how did exercising epistemic reflexivity eventually influence my own work? My PhD investigates how private actors and EU regulatory schemes emulate ‘classic’ public law accountability mechanisms. Over time, I realized that my actual research interest was not to assess the legality of novel mechanisms like Meta’s Oversight Board or the EU’s Digital Services Act. Rather, I was fascinated how such mechanisms, which I called Emulated Guardians, performatively play with legal imaginaries to self-legitimize. They construe their authority towards the public rather through reference and symbolism than through hard, legal substance. In that sense, reflexivity had a double meaning in my research: On the one hand, the phenomena I studied reflexively echoed public law imaginaries in privately dominated normative orders. Thus, the very object of my study was a reflection – not a classic ‘legal’ institution. On the other hand, conceptualizing how discursive and cultural imaginaries construe societal authority beyond formal legal authority required me to position myself on that middle-ground between law and social sciences – a place I was only able to find through continuous self-critique and reflection.