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

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

Demystifying Methods

As discussed in Part I, methods intimidate legal scholars, and understandably so.  To demystify methods, the most helpful thing, is … 

to go back to your research question.

(anti-climactic, I know)

In this context, categorizing research questions to descriptive, normative, and critical questions is a helpful place to start, since these different archetypes correspond with different types of methods, and even different understandings of the term “methods” itself – including of its mere possibility in legal scholarship. 

Descriptive questions concern the state of the legal world as it is. Broadly speaking, they can be socio-legal, when they look at law’s interaction with the real world; or doctrinal, when seeking to describe law as it is (the lex lata). They can also be ontological when they try to describe concepts or ideas (a lot of traditional analytic jurisprudence falls into this category).

Concerning most descriptive questions, “methods” usually means the way we find and arrange the information needed to provide an answer. For example, if our question is socio-legal – say, “does the background of ISDS arbitrators influence their decisions?” – our method would usually be empirical, whether quantitative, or qualitative. Most law school graduates are not proficient in such methods, and early career researchers should be aware of the comparatively high entry costs needed to really do them well. Again, I recommend this book for specifics about socio-legal methods in international law (see this and this also).

Importantly, descriptive doctrinal research also has methods, even if they are rarely discussed as such. If my question is “what is the legal status of the principle of permanent sovereignty over natural resources,” my method might be generally positivist: to apply the sources of international law – i.e., those found in Article 38(1) of the ICJ Statute, and the rules of interpretation – in order to find the answer. At this point, many legal realists and critical legal theorists would object that this “method” is nothing but politics concealed. Answers to legal questions, they would say, are not really determined through deduction from sources but by interests and values; and when doctrinal researchers claim to do descriptive work (finding law), they actually conceal the fact they their work is normative (making law). In international law, this criticism is perhaps especially challenging, because of the well-known problems of the discipline such as its much maligned claim to neutral universality and the ambiguity of customary international law. But the important point is that rather than fearing the term, doctrinal researchers should embrace the fact that they do employ methods of some sort, those associated with legal positivism. 

A somewhat different understanding of methods is relevant to normative, critical and descriptive-ontological questions. Normative questions ask what ought to be the state of the legal world. To make sense of such questions, we need a theory of the good in light of which to assess what law “ought” to be (e.g. moral theories such as non-consequentialism, utilitarianism, or as is much more common in legal scholarship, various “policy oriented” considerations). Critical questions, for their part, attempt to expose the inherent relations between law and power, according to the researcher’s theoretical outlook on which specific type of power relations are most pertinent or interesting (race, gender, class, colonialism, or all of the above). They are descriptive by exposing these relations (and here, they might deploy various methods of descriptive research in order to present their factual basis); and although they might not always offer solutions (short of revolution, of course), they are normative by implying that these relations are bad.

In relation to the questions described above, the term “methods” has tight relations with the term “theory.” Recognizing this is key, since many early career researchers that do this type of work struggle with methods precisely because of the dialectical relations between theories and methods, when it comes to normative, critical or descriptive-ontological questions. As Danish Sheikh put it brilliantly here, “it’s not theory, but it’s not not theory.”

Let me try to make it easier. In simplified terms, theory refers to the general intellectual framework through which we think about our question (utilitarianism, critical race theory, and so on). In the context of normative, critical and descriptive-ontological questions “method” usually refers to the manner through which we apply our selected theory to a concrete question – or, in other words, “applied theory.” This is what the “analytic” in analytic philosophy (or jurisprudence) means, and it is in this sense that the terms “critical methods” or “feminist methods” are used. Here, theory breeds the method and vice versa, to such an extent that it’s difficult to distinguish between the two.

Of course, each of these theoretical strands have subgroups with their own methods or techniques of argumentation – i.e., of applying the theory. Developing as a researcher in each of these schools is, to a large extent, specializing in their specific intellectual “moves.” This is not easy, since like traditional doctrinal scholarship, these works rarely discuss their “methods” explicitly. In fact, the complexity and diversity of such practices have led Koskenniemi to object to “methods” talk in legal scholarship to begin with – and to argue that what he really have is a variety of argumentative “styles.”

Returning to doctrinal research, we can now better understand the mystery of its methods: should its “methods” be understood in the former sense – ie, a way of finding and organizing information about law as it is – or in the latter sense, as a series of intellectual moves, an argumentative structure – a style –  through which law is made.  Phrased this way, the attack against positivism throughout the 20^th century can be understood as a fundamental disagreement about the nature of its methods.

A caveat: The categorization above is admittedly simplified. In reality, there is significant interaction between types of research questions, and the boundaries between them can be unclear.  This is especially true in relation to interdisciplinary work, involving law and history, law and literature, and so on. Accordingly, a specific work can have different parts with different methods or “styles.” But hopefully this will be enough to clarify things, at least as a start.

The Politics of Methods

I end with a few words on the politics of methods. In some law schools, using certain methods is a source of cultural capital (and, unfortunately, other methods are equally met with hostility). Note the awe with which some law faculties treat the economic analysis of law (especially involving formulas), or quantitative empirical methods (especially involving experiments). In other faculties deployment of critical methods can get you a long way. The prestige premium attached to certain methods can be partially explained by the fact that law schools still struggle to distinguish themselves from trade schools, and legal scholars struggle to differentiate their intellectual position from that of the judge, lawyer or activist.  In such environments, doctrinal study of law might be looked down upon, and particularly so in international law, in which black-letter law is often thin; doctrinal claims more contentious; and the influence of power politics is accepted enthusiastically even by those that think that domestic law is somehow immune to such disturbances.

The temptation for (especially early career) researchers to strategically adopt “a shopping mall approach to method” in order to gain such capital is clear. While this is understandable, I think it should be resisted, (a) because it is not fun; (b) it is too instrumental; and (c) because it does not usually work even on its own instrumental terms. For example, using quantitative empirical methods because of the scientific cachet, or slinging around “externalities” or “decolonization” opportunistically, is likely to be challenged exactly in the wrong moment by that faculty member with 20 years of experience in such work.

Furthermore, one should be critical of “prestige” in legal methods. Beyond the power-politics of prestige that might favor this or that type of method, a common predicament of legal scholarship is that it suffers from inter-disciplinary lag. Many extra-legal theories and methods develop in other faculties, and when they arrive in the law school with pomp and circumstance, their shortcomings have been already exposed in the “original” faculty. International legal scholarship sometimes suffers a double lag, since in some faculties – but definitely not all! –  intra-institutional prestige struggles push international lawyers to follow the “new” methods applied by domestic lawyers. This is not so much an argument against this or that method, but about approaching prestige with a grain of salt.

Beyond intra-institutional politics, recent years are characterized by increasing preoccupation with the relations between methods and identity. Just as an example, when white scholars from the Global North engage in post-colonial critique of international law, they themselves might face the criticism that they are crowding out voices who experience the phenomenon they are criticizing, or missing important points of critique that can be learnt from experience. While I do not think there’s a conclusive answer to this dilemma – and the solution cannot be, of course, that some people are “banned” from doing some methods –  the politics of methods call for reflexivity about our use of them.    

To sum up: like everything in academia, managing methods is a combination of both getting a handle on the substance and navigating the politics of the profession. And, of course, of learning to elegantly cut short the discussion with that close-talker, in the never-ending dash towards the cookies.