Let’s Talk About [Sociology], Baby … Let’s Talk About All the Good Things and the Bad Things That May Be

[Tamsin Phillipa Paige is a Lecturer with Deakin Law School and consults for the UN Office on Drugs and Crime in relation to Maritime Crime.] 

[Recently Opinio Juris hosted a symposium on Professor Monica Hakimi’s latest article in the Michigan Law Review, “Making Sense of Customary International Law”, and her argument that the rulebook approach isn’t reflective of how CIL functions, and the need for a “real world sociological” approach to analysing the malleable nature CIL. The posts made in that symposia strongly engage with the jurisprudential questions raised in the article about the line between law and social practice. I don’t wish to step into that debate and advance further conversations on that issue (although for those wondering, I’m firmly on record as adopting the position that all law is given meaning by, and can only be understood fully through, the social practice that it generates – the law as written and the social practice are interdependent). Rather, I want to discuss where I would like to see Hakimi (or more realistically a team led by Hakimi) take this exploration next, and what that would entail from my perspective as a sociologist (and, I admit with a healthy degree of self-loathing, lawyer).

My reading of Hakimi’s paper was that what we have here is a research question: “Does CIL follow a rulebook conception in practice?” This research question is then followed by a robust hypothesis that the rulebook conception is not reflective of the practice of CIL and that in reality CIL is malleable in nature and context dependant. What I would like to see next in this project is an empirical study (or set of different empirical studies that can then be compared) on what the practice of CIL looks like. The reason that I suggest that Hakimi’s current paper constitutes a robust hypothesis on this question and not an empirical exploration of this issue is that for all her reference to the “raw data” of CIL practice, Hakimi cherry picks stories that buttress her argument without clear justification as to why these stories and not others are the ones that are being explored (see, for example, Alonso Gurmendi’s response to Hakimi in the symposium).

This is fine for an argument that is to remain in the realm of jurisprudence, but if Hakimi wants this to become a genuine sociological study of whether the rulebook conception of CIL is reflective of real world practice then I would suggest that three things need to be done in planning for the next phase of the project – identification of biases in the author; identification of method of empirical analysis to be applied; and why this (or these) methodologies are apt to addressing the question at hand. So, to misquote Salt-n-Pepa: “Let’s talk about [sociology], baby”.

One of the first things that needs to be done between articulation of a research question and hypothesis, and the analysis of data to explore the question at hand is the identification by the author or authors of the biases that they bring to this research. This notion is one that I’ve see lawyers often struggle with, something that it likely due to the legacies of belief in objectivity and equality that still linger within the legal tradition. These legacies exist in domestic and international law, and for example include: equality before the law and sovereign equality, the reasonable person (or for the longest time the reasonable man) test and other reasonableness tests, and the notion that questions of fact are determined objectively rather than through the arbiter’s subjective lens. While the time of belief in the law as neutral, and equating that neutrality with objectivity is long past, the ongoing process of internally interrogating personal biases is not yet established in the legal tradition. In sociology, or at least qualitative sociology (I can’t speak in detail to quantitative sociology) the opposite is true – all analysis is indelibly shaped by the biases that the authors bring to the data, as such authors should identify their biases so that they are conscious of them through their analysis and so that future readers can read their analysis in light of these self-identified biases. Is it a perfect system, no, does it help in achieving balanced analysis of data, yes. As an example, I’m a queer woman who is generally suspicious of the actions of government and government officials until strong evidence gives me reasons not to, and I approach law from an understanding that it is a tool that is deployed and shaped by an unending tension of exercises of power and resistance. The bias-reflection doesn’t need to be as blatant as the one I have made just now, it could be made evident through the theory you articulate or through other softer means, but it should be present. The bias-reflection process makes me actively conscious of these lens that I bring to my analysis, allowing me to engage actively with them when they are helpful and put them aside when they are detrimental. It also makes you as the reader aware of the perspective and world view that I’m bringing to my analysis and scholarship that will invariably shape my conclusions. I know this is a hard process to engage in, it was hard for me to relearn it when I returned to sociology after studying law, but it improves analysis.

The second thing that needs to be done as this project moves forward is a clear identification of the methodology that is being employed at each stage. I’m not here to proscribe methodologies, because they are all just different tools in the research workshop. I’ve engaged in interview based analysis combined with observation ethnography in my work on Somali counter-piracy (some of which was published in the first OJ Emerging Voices Symposium), I’ve used critical discourse analysis of historical public records in my book on how the P5 understand ‘threat to the peace’ under article 39 of the Charter, and in my current project on perceptions of law and justice in society (that informed my recent OJ post on COVID19 bio-security and post-9/11 Security Theatre) I’m using interviews in combination with social discourse analysis of popular fiction. My point is that the method should fit the question, and while Hakimi’s question of whether the rulebook conception is reflective of real world practice could be answered by any number of qualitative or quantitative methods, at the moment no clear method has been articulated. I would like to see multiple studies engaging in different, clearly defined and articulated methods followed by an overarching comparative study – but this would be ambitious and need a team with not insignificant funding and institutional support.

The final thing that I would like to see next in the project before any studies start is a discussion of why the method that has been chosen and is being applied is an appropriate approach to yield an answer to the question being studied. In my experience of reading socio-legal research done by lawyers who have started incorporating sociological approaches to their legal analysis, this is the step that is so often missing. In outlining what the bounds and limits of the method that is being used, there also needs to be an argument (or explanation) about why this method is appropriate. Sometimes this explanation is short, and straightforward (in my Somali counter-piracy work I think it was about a paragraph), and sometimes it is a long, slow building argument (the three chapters in total in my UNSC book). It is as long as it needs to be for the study and the project – how detailed and how voluminous this explanation is isn’t the point, the point is that there needs to be some justification of why these methods are appropriate for the question. Much like addressing and naming bias, this is a process that lawyers struggle with in my experience, although for different reasons. The struggle with the question of method comes down to the fact that for the most part lawyers are educated in the single method of the law (or as a former supervisor and mentor put it: “I just read some stuff and then I analyse it”) so when lawyers start to incorporate new methods into their scholarship they aren’t in the habit of discussing why the method is appropriate to answer the question. They are good at articulating what the method will add to understanding and knowledge, but not at why that method, and not some other method is the most appropriate for this research question. I say this not to criticise lawyers, for I’m a lawyer, my peers and colleagues are lawyers, and most of my friends are lawyers, rather I say it to highlight an issue that is easy to fix but prevalent in socio-legal research – namely why is this method appropriate.

Overall, I enjoyed Hakimi’s article. I found it insightful and detailed regarding the jurisprudence of customary international law. What I have outlined in this piece is what I, as a sociologist who studies the application and impact of law in society, would like to see as a part of the next steps in this project if it is to move outside of the realm of legal theory and start to truly embrace the question as one of sociology.