Contemporary Reflections on the Push and Pull of the Policy Audience by Two Feminist Methodologists

This blog is a shortened version of an article by the authors, which is due to appear in the Oñati Socio-Legal Series. 

Is the progressive politics of the left undermined when Socio-Legal researchers undertake work with policy makers? This is a question which has long dogged debate between critical legal and Socio-Legal scholars. Critics have warned us against the dangers of limiting our research agendas to problems defined by the State or to focusing on the pragmatic at the expense of the theoretical. For some authors, undertaking any empirical study of law is problematic. Some have argued that when law is looked at through a sociological lens there is inevitably a danger that its internal epistemological logic is ignored and sociology’s aspirations to scientism transform law into a policy science or hybrid monstrosity that is neither law nor social science. For these scholars, it is sociology’s aspiration to find more objective and realistic ways of understanding law that makes Socio-Legal Studies valuable to policy audiences, which seek legitimacy by claiming that their policies are evidence based. This quest for objectivity or legal science can be traced back to the American Legal Realists who exposed the dangers of judicial subjectivity. Others have argued that the danger of engaging with policy audiences is that one becomes captured by their way of seeing the world and by pragmatic concerns.

A key implication of these arguments is that Socio-Legal empirical research can easily become divorced from progressive politics and critical theory, which view the State and Law as something to be suspicious of and of being complicit in the production of inequality and injustice. Those arguing in support of this position have been suspicious of the methods employed by Socio-Legal empiricists and dubious about their results, viewing their work as reductionist, deterministic, and politically conservative. Work in this vein undoubtedly raises important issues about the impact that researching with the powerful has in shaping the domain of law and society scholarship. It challenges us to  discredit the assumptions underlying the existing legal order rather than just observing them. The possibility of ‘policy capture’ is exacerbated when the State funds research, acts as a gatekeeper to research subjects and data, or places a premium on ‘impactful’ research.

With notable exceptions, arguments of this kind are often lacking in nuance. Critics tend to be vague about what they mean by ‘the’ policy audience and also have a propensity  to equate the term with a conservative elite dedicated to legitimating hierarchy and domination. But policy debate, policy making, and policy implementation involve a spectrum of different institutional and organisational settings. Policy makers are not necessarily an easily identifiable group with a consistent set of attitudes. Judges who work in the social security and child support tribunal may, for instance, have a very different worldview from those at the apex of the legal system or in the Ministry of Justice. Does the definition of policy audience offered up by critics of Socio-Legal empirical work include both the conservative and progressive civil society actors who influence policy? Does it include arms-length actors in a hollowed-out state, such as those sub-contracted at minimal cost to implement government policy initiatives? Is it credible or meaningful to group such a diverse body of actors together or to assume that they make or administer policy without question or resistance? Is the left wing intellectual approach espoused by critics less biased in its claim to evoke rigorous but balanced intellectual argument than the neoliberal orientation of empirical work they criticise? While social scientists tend to be pessimistic in their dealings with the powerful, is it possible for policy makers to pursue progressive research agendas? Are Socio-Legal empiricists absolved of their shameful collaboration with policy makers if their findings prove unpopular with ‘the establishment’?

Accounts of the way in which Socio-Legal empiricists risk capture by policy makers frequently treat social science research as symbiotic with positivism, determinism, and pragmatism. These accounts constitute a gross simplification and outmoded understanding of contemporary methodological debates amongst social scientists. Social constructivism, phenomenology, grounded theory, feminism, post colonialism, critical race theory, positionality, and participatory research have all fundamentally altered the way that qualitative researchers frame the questions they ask, the methods they use, the voices they privilege, and the claims they make on behalf of their data. What, after all, could be more radical or progressive than an expert denying their expertise and choosing to privilege the voices of the marginalised as feminist scholars or co-produced datasets frequently aspire to do?

The danger of capture clearly exists. Yet, capture by ‘pure’ theories that assume certain relationships between state actors without interrogating them empirically may well be equally as dangerous. Rather than viewing Socio-Legal scholars as dupes captured by the system, it is also possible to view them as irritants or muckrakers that challenge established legal orders. It is equally important to remember that Socio-Legal empirical work has frequently been rejected by the policy audience as too radical.