Methodology: Feminist Legal Research and Feminist Methodology

This week’s blog post comes from the lovely Iain McDonald who is module leader for Research Methods.

Introduction: what is methodology?

j-howard-miller-we-can-do-it-rosie-the-riveterAll methodologies represent a standpoint on the task of research – it guides the researcher on a variety of questions, such as: ‘why am I researching?’, ‘what should I research?’, and ‘how should I carry out my research?’

Being able to articulate methodology helps you to plan a more coherent and focussed research project – and helps to avoid the risk of trying to do too many things at once!

Why adopt a feminist methodology?

As a starting point, feminism can be located within a critical approach to research.[1]  This means that it usually identifies its purpose as political in nature, meaning that research is carried out wit the purpose of seeking change in society and greater equality for particular groups within society, whether they be categorised by race, ethnicity, gender, sexuality, religion or age. The particular focus of feminism means that their work is ultimately focussed on improving the position of women in society or before the law.

What can I research?

A feminist methodology will also naturally direct the researcher towards the investigation of legal issues and their effects on women – in method terms, this is sometimes referred to as ‘asking the woman question’.[2] However, it is important to remember that this does not mean that feminist research is only limited to looking at women – remember that researching other groups, such as men, or children, or institutions, all might help to shed light on the experiences of women.

What does a feminist methodology mean for the conduct of research?

While the focus of research is what tends to distinguish feminist legal research (and feminist methodology) from other forms of legal research, one of the most important and ongoing contributions of feminism to our understanding of the research process has been the way it acts as a critique and revision of traditional models and methods of research. While there are a number of issues that could be explored, let’s just take one for now:

The feminist critique of objectivity

Feminism is sceptical of objectivity in research. This scepticism comes from women’s own experience of research, whether it is legal or from some other discipline. There has been a long standing tradition in research whereby women have been either ignored as a distinctive group, or simply subsumed within a more general claim about ‘society’ or ‘mankind’, regardless of whether their experiences differ from those of men. This has often meant that women’s voices and needs have been overlooked or, at worst, excluded from wider social attention. (Conversely, where women have been targeted by research, it has often been as a problematic group, such as ‘bad mothers’, ‘single parents’, or ‘women who commit crimes’.)

Feminists critique such research because, while it claims a universal applicability within objectively carried out research, the reality is that these choices reveal a particular partial or subjective viewpoint that either views women and their experiences as insignificant in their differences, identical to those of men, or simply uninteresting. As a result, claims to objectivity must be treated with caution, as all research (and this would naturally include feminist research) emerges from particular viewpoints, assumptions and values.

So why research? 

This critique might be seen as fatal to the idea of research at all!

However, being sceptical of objectivity does not mean the acceptance of a complete moral relativism.

Being sceptical of objectivity means that a feminist researcher becomes more critical and questioning in respect of all research, including its own. It allows us to interrogate the research we read and more critically evaluate our own:

Why this focus?

screen-shot-2017-02-14-at-11-28-35Why these questions?

Why these methods?

Being sceptical about objectivity does not mean that all knowledge is rejected – instead it demands that we consider all claims to knowledge and truth within the context in which they are created.

Conclusion

There are many issues raised by feminist research and the use of feminist methodologies. Feminism challenges us to think about whether we approach our research with a set of assumptions, values or biases – and what the significance of this might be. For many of you, this may be the first time in your education that you have been asked to think about feminism. But whether or not you are interested in researching legal issues and their impact upon women, this methodology still has lessons to impart on how we can all research more effectively.

 

[1] See Matt Henn, Mark Weinstein and Nick Foard, A Critical Introduction to Social Research, (2nd edn, Sage 2009), Ch 2.

[2] Katherine Bartlett, ‘Feminist Legal Methods’ in M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (9th edn. Sweet & Maxwell 2014), Ch 14 ‘Feminist Jurisprudence’.

 

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Research Methods: Socio-Legal Methodology

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Remember: Your methodology is your overall approach or your strategy that you will adopt throughout your research project or dissertation. It forms your ‘toolbox’ and your methods form your ‘tools’ i.e. specifically how you will undertake your research. Normally you choose one methodology and stick to it rather than ‘I’m adopting a part-doctrinal, part-socio-legal, AND comparative methodology’. Otherwise, this becomes too ‘messy’!

Socio-Legal Methodology

This post focuses on the socio-legal methodology. A socio-legal methodology is quite different to the doctrinal methodology that was examined in last week’s blog post. It is different because the socio-legal approach moves away from solely  looking at legal instruments to build a more contextual analysis.

There is a lot of academic debate as to ‘what is a socio-legal methodology is’ because there is no single standard definition.[1] In that regard, I would recommend reading different sources to how scholars use this particular methodology.

A good place to start is:

Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007), Chapter 5.

Socio-legal scholars argue that law does not operate in vacuum.[2] There are wider considerations which need to be taken into account. Therefore, it is important to go beyond the traditional black-letter approach.[3]

There are some common features within the socio-legal methodology. It generally involves:

  • A contextual analysis of the law – how does it operate in society? What are the implications?
    • Goes beyond legal texts.
    • Supplements legal analysis.
  • Is either multidisciplinary or interdisciplinary in nature. If using a socio-legal methodology, you will need to substantiate which aspect you have chosen and why.
    • And yes, there is a distinction between multidisciplinary and interdisciplinary[4]

Strengths

  • Broader, more enriched analysis of the law.
    • Therefore consideration of wider issues.
  • Allows for alternative theoretical and different perspectives on legal issues.
  • Incorporates non-legal issues into the context of law, which would be traditionally outside the scope of legal studies.
  • Derive new ideas, perspectives or insights.

Challenges

  • Insufficient analysis of the law or legal doctrines.
  • Insufficient focus on the law – supplementary material is important, but not at the expense of ignoring the law or legal context.
  • Lack of identity – Is it law, is it economics, is it politics, is it sociology?
  • Critical analysis is not well-developed – Do you understand the wider theories outside of law? Do you fully understand the underpinning arguments?
  • Conceptual theories are not well developed – projects can appear ‘disjointed’ or ‘fragmented’ when being read.
  • Weak understanding of the issues that need to be reformed or the challenges in relation to the law, as well as other issues.

Methods

Note: A socio-legal approach does NOT mean you ignore the law. It is still important and you will still undertake doctrinal analysis but that forms part of your METHODS. Analysis of the traditional sources/primary sources of law are still highly relevant e.g. statutes, case law etc.

The additional methods that you need to think about is the contextual analysis – is it non-legal? If so, is it from a reputable source? What additional perspective does it add to your research? Is it relevant?

Further reading:

  • Cotterrell R, ‘Why Must Legal Ideas Be Interpreted Sociologically?’ (1998) 25(2) J. of Law & Society 171-192.
  • Feenan D, Exploring the ‘Socio’ of Socio-Legal Studies (Palgrave Macmillan 2013).
  • Harris D, ‘The Development of Socio-Legal Studies in the United Kingdom’ (1983) 2 Legal Studies 315-333.
  • Perry-Kessaris A (ed), Socio-Legal Approaches to International Economic Law (Routledge 2013).
  • Salter M, Mason J, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007).

To find out more and access further materials:

—–

[1] For example, see: Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007); Roger Cotterrell, ‘Why Must Legal Ideas Be Interpreted Sociologically?’ (1998) 25(2) J. of Law & Society 171-192; Don Harris, ‘The Development of Socio-Legal Studies in the United Kingdom’ (1983) 2 Legal Studies 315-333; Dermot Feenan, Exploring the ‘Socio’ of Socio-Legal Studies (Palgrave Macmillan 2013).

[2] Ibid.

[3] Roger Cotterrell, Law’s Community (OUP 1995) 296.

[4] For example, see: Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007) 133-134.

 

Research Methods: Doctrinal Methodology

Doctrinal (or “black letter”) methodology refers to a way of conducting research which is usually thought of as “typical legal research”. A doctrinal approach to research will focus on case-law, statutes and other legal sources. It differs from other methodologies in that it looks at the law within itself; a pure doctrinal approach makes no attempt to look at the effect of the law or how it is applied, but instead examines law as a written body of principles which can be discerned and analysed using only legal sources.

Strengths

A strong doctrinal analysis will be the starting point for much legal research. The doctrinal methodology can encompass any form of purely legal analysis, including the history of law (e.g. Roman law), what the law was previously, what the law is now and whether there are indications as to how the law might be evolving or developing. It is often associated with positivist legal research – the law is what the law says it is, rather than examining the morality or effectiveness of the law – and this is both a strength and a weakness. In legal research, a doctrinal focus is often a good starting point, but a lot of legal research will need to take analysis further than a purely doctrinal approach.

Challenges

The doctrinal methodology is often criticised for being disconnected with reality – by focussing on legal sources it often doesn’t question or challenge the application of the law, but instead analyses the law only in terms of internal consistency. Nevertheless, doctrinal analysis should underpin most legal research, as a strong doctrinal analysis to establish what the law is is often a necessary precursor to researching other legal questions – particularly in areas where the law is uncertain or evolving.

Method

Undertaking doctrinal research typically involves source-based research and it would be unusual to undertake qualitative or quantitative research under the doctrinal methodology. Doctrinal analysis will focus on traditional legal sources, such as case law. Despite this, it is not impossible to exclude doctrinal analysis from other methods. For example, the Big Data for Law project used qualitative methods to analyse the language and language use of statutes. (Whilst the project had other, non-doctrinal goals, the aim to analyse statute language use is a function of doctrinal research).

Overview

Doctrinal research is one of the fundamental methodologies of legal research, but increasingly research looks beyond pure doctrinal analysis. A familiarity with conducting doctrinal analysis therefore remains fundamental to any legal research project, but most projects will require moving beyond doctrinal analysis to utilise other methodologies. A review of some of these methodologies will follow in the coming weeks.

Handy Tip: Using Google ‘Define’

When studying law, understanding the terms that you use and how to use them is important. This is because a level of precision regarding language is needed within legal studies.

A lecturer once told me, “You can physically take a glass out onto the terrace, but you may not!” In these circumstances, knowing the difference between ‘must’, ‘shall’, ‘may’, ‘can’ or ‘cannot’ may help with your essay writing. It can improve the style of your writing and make the central argument and analysis more convincing.

Other times, you will be expected to use specialist legal terminology. If you are unsure, you  you should look up the terms in a legal dictionary. There are lots of physical copies of legal dictionaries in the UWE library, as well as, electronic copies that you can access online.

Additionally, you may read something in a journal article or book that you may not understand. I often underline this word and use ‘Google define’ to help me understand what it is and write a note in the margin to myself.

Using Google, if you type ‘define’ and then the word that you are looking for, it acts as an online dictionary. For example, if I were looking for the term ‘sanction’, I would type in ‘define sanction’ into Google. A box with definitions will then appear on your browser, like below!

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Just be aware that there may be one or more definitions for a given word. A sanction in law means something different from that used in ‘normal English’, so in that case, it would be worthwhile to consult a dictionary specifically for law.

Quick Tip #1 – Westlaw searches

Quick Tip: –

If you are struggling to find information on Westlaw because your search is turning up too many results, try using the Westlaw subject hierarchy. This allows you to search journal articles, cases, legislation etc using the subjects which the document has been tagged with. It’s a considerably more exact way of searching than, for example, a keyword search.

It’s also very simple to use:

westlaw1

westlaw2

westlaw3

westlaw4

westlaw5

westlaw6

Workshop: Assessment Criteria & Essay Structure

It was lovely seeing you at the workshop on ‘Assessment Criteria & Essay Structure’ yesterday.

Here are the slides that were used: Assessment Criteria Powerpoint Slides

We highlighted that it is important to have a good structure to help develop your arguments and make it easier or the reader/marker to understand the point that you are trying to make. To do so, we revisited the burger analogy from an earlier post.parts-of-a-paragraph

A good essay like a burger, will have an introduction (the bread bun), analysis (the filling – with different/separate components that support each other) and a conclusion (the bread bun base). It should have a logical and coherent structure, where the central argument is evident and the sections complement each other.

  1. Introduction

The introduction should outline the rationale behind your approach/work – that is, why it is relevant. Also, what is relevant i.e. what law you will use; scope and limitations – recognising the parameters of the task, as well as, your central argument. From there, it should also briefly touch upon how you’re going to answer the question, which primarily refers to the structure of your essay e.g. Part 1… Part 2… Part 3…

2. Analysis

In a burger, the ‘filling’ is arguably the best ‘bit’ of the burger, so the analysis should be the main section and ‘best bit’ or bulk of your essay. It will be formed of different components, which should be linked to each other and your central argument.

As per the assessment criteria, you should:

  • Summarise and synthesise issues arising from the law;
  • Be able to use academic arguments to support your work in a concise manner;
  • Be able to engage with these academic arguments;
  • Narrow and focus on relevant issues;
  • Consider areas for reform or recommendations

(For further details, please refer to the LLM Assessment Criteria in the LLM Programme Handbook, which can be found on UWE Blackboard).

To help your analysis, sub-headings can help ‘sign-post’ different aspects of your work and help break it down into specific sections.

3. Conclusion

The conclusion will finish your essay. It should link back to your introduction and the central argument that you introduced and summarise the earlier analysis. Because you’ll have already undertaken the analysis, the conclusion can draw on these earlier arguments. It should be noted that the conclusion is not a place to introduce new arguments or concepts.

 

 

 

Essay Structure

In this post, you can access an example of an LLM essay:  Example essay

This essay has been annotated to give an explanation of how essay structure has been used to answer the question. It must be stressed that there are many ways to structure an essay, and that a lot will depend on your personal writing style, the topic and the argument/s you wish to build. This example is intended only to show how structure may be used to form an answer, and illustrate the importance of structure within essays.

Please note: If you have problems downloading the essay, open the folder containing the download, right click on the file, and open with Microsoft Word.

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