Symposium on Early Career International Law Academia: “You Keep on Using that Word” – on Methods in (International) Legal Scholarship (Part I)

[Eliav Lieblich (@eliavl) is Professor of Law at Buchmann Faculty of Law, Tel Aviv University.]

That girl from sociology in your grad students mixer. The smug guy in your doctoral colloquium. That close-talker near the cookies at the conference break. The just-tenured-prof in your job talk. The-grant-proposal-format-that-was-made-for-sciences-but-for-some-reason-is-the-same-for-everyone. Eventually, someone will ask you about your research methods. Confession: I dreaded this question during my doctoral studies, and for a time later. If you, early career researcher, feel the same – know that you’re not alone.

In Part I of this piece, I will say a few things about why the M Word is scary to legal scholars. Then, in Part II, I’ll try to demystify methods in legal scholarship, by discussing the relations between categories of research questions and methods. I will end with a few words on the politics of methods.

Much of what I say here is relevant for legal studies at large; but these issues might be more prevalent in international law, where scholars come from a wider variety of backgrounds, and common understandings of methods are harder to achieve. Additionally, what I describe here is characteristic of legal scholarship in universities in the Global North. This is my focus since for better or for worse, these universities remain important gateways to careers in international legal scholarship.    

Note, that there is a multitude of ways to think about methods in international legal research. I don’t presume to present the “best” or even “correct” way. My aim is much, much more modest: to share ways to think about this, that I have found helpful when teaching and doing research myself.

How Law Learned to Stop Worrying and Love Methods

No wonder talking about methods in legal scholarship is awkward. Pick any foundational piece of legal scholarship. Unlike in the social studies or the sciences, it is unlikely that it would contain an explicit discussion of methods. This is not surprising, considering the trajectory of legal scholarship throughout the 20^th century, at least in the West.

Risking some generalization, traditional legal scholarship viewed law as a self-contained world. To do legal scholarship, or to teach law, was to engage in that thing that lawyers “do”: to tell people – judges, clients, students –what the law is. Within this self-contained world, there were legal sources, and there were professional cues and expectations about what it takes to make a convincing argument on their basis. The legal scholar was basically a lawyer with more time to write long things. In international law scholarship, the hallmark of this tradition is of course the  international law treatise.

 It is true, that for some time, traditional scholarship insisted on viewing law as a “science.” But much of the idea of “legal science” was predicated precisely on the insulation of law from other sciences. The result was that legal scholarship was seldom preoccupied with methods in a manner comparable to that of the social or natural sciences. Of course, legal scholarship always had “methods,” but these were usually unspoken of as such, since they were a transparent part of what “doing law” was.  Also, in practice, as Tzouvala shows in her recent book, the insistence on the autonomy of law did not prevent some traditional international lawyers from applying extra-legal “scientific” criteria to determine levels of “civilization” and entitlement of peoples to international legal subjectivity.

Nonetheless, the talk about methods in legal scholarship is a product of a relentless attack against this traditional mode of thinking, mainly – but not only – in the US. In the first decades of the 20^th century, legal realists began to insist that law was meaningless without social context, and that to understand law was to understand its operation in real-life. To understand “law in action,” judges, as well as scholars, needed to observe society including through methods of social sciences. Eventually, this thinking nurtured the mammoths of 20^th century legal scholarship: law and society (and the “law and” movement in general) and critical legal studies. Both of these strands, and their numerous offspring, share the position that law must be analyzed from an external point of view, and through extra-legal methods of gathering information and arguing. 

Of course, these developments also affected international law. For example, in the US, scholars like Morgenthau applied the legal-realist critique against positivist views of international law; and since the 1960s, the New Haven School of International Law argued that the role of the scholar was to help, through a scientific approach, to craft policies that promote a world order of human dignity. Traces of New Haven can be found across contemporary “policy oriented” US scholarship, although many of its more esoteric intricacies are rarely applied. Critical approaches to international law followed globally (initially called “the new stream”), and applied extra-legal theories to international law – many imported and adapted from the humanities – from historical approaches to linguistics to feminist approaches, from post-colonial studies to Marxism and critical race theory. A great recent volume on the international law and methods can be found here.

Having said that – with the exception of some advanced year electives – most law schools, in most of the world, teach most of their courses in the traditional way. This is especially true in legal cultures where extra-legal thinking among lawyers is still discouraged. For this reason, many graduate students and early career researchers struggle when coming across the M Word, in particular when studying in or applying to universities in which extra-legal analysis of law is encouraged (read – many elite universities in the Global North).

In the next Part, I suggest a way to demystify method-talk.