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Having One’s Cake and Eating it: The Paradox of Contextualisation in Socio-Legal Research

Banakar, Reza LU (2011) In International Journal of Law in Context 7(4). p.487-503
Abstract
In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the... (More)
In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations; the second reverses law’s method of dislodging actions from their socio-historical context; and the third uncovers the socio-cultural and historical embeddedness of the legal system. This paper concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who employ the second and the third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law. (Less)
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author
publishing date
type
Contribution to journal
publication status
published
subject
keywords
justice, legal pluralism, methodology, negotiation, enforcement, interpretation, implementation, legal rule, doctrine, legal research, socio-legal, law and society, social context, contextualisation, H.L.A. Hart, objectivity, community, globalisation, late modernity
in
International Journal of Law in Context
volume
7
issue
4
pages
487 - 503
publisher
University of Cambridge Press
external identifiers
  • scopus:85011492353
ISSN
1744-5531
DOI
10.1017/S1744552311000267
language
English
LU publication?
no
id
103a1091-89b4-49b4-99c3-66acc4fe136f (old id 3632381)
alternative location
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1777165
date added to LUP
2013-04-10 07:54:38
date last changed
2017-10-01 03:15:58
@article{103a1091-89b4-49b4-99c3-66acc4fe136f,
  abstract     = {In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations; the second reverses law’s method of dislodging actions from their socio-historical context; and the third uncovers the socio-cultural and historical embeddedness of the legal system. This paper concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who employ the second and the third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.},
  author       = {Banakar, Reza},
  issn         = {1744-5531},
  keyword      = {justice,legal pluralism,methodology,negotiation,enforcement,interpretation,implementation,legal rule,doctrine,legal research,socio-legal,law and society,social context,contextualisation,H.L.A. Hart,objectivity,community,globalisation,late modernity},
  language     = {eng},
  number       = {4},
  pages        = {487--503},
  publisher    = {University of Cambridge Press},
  series       = {International Journal of Law in Context},
  title        = {Having One’s Cake and Eating it: The Paradox of Contextualisation in Socio-Legal Research},
  url          = {http://dx.doi.org/10.1017/S1744552311000267},
  volume       = {7},
  year         = {2011},
}