Comparative Socio-legal Research

Center for the Study of Law and Society
Miniseries in Empirical Research Methods

Friday, April 1, 2011, 9 a.m. – 12 noon. Lunch to follow.
JSP Seminar Room, 2240 Piedmont Avenue, Berkeley

David Nelken
Distinguished Professor of Legal Institutions and Social Change, University of Macerata, Italy;
Distinguished Research Professor of Law, University of Cardiff, Wales

The importance of understanding how law is lived and understood in other places can hardly be overestimated in a globalizing world with ever more frequent legal transfers involving impositions, borrowing, or collaborations, and attempts to change other people’s legal systems or one’s own in the light of theirs. But, with some exceptions, empirical comparative socio-legal research is still relatively undeveloped. In this seminar I shall discuss how to grasp, create and handle data relevant to this cross-cultural type of understanding. I shall also be concerned with how to use qualitative research methods so to problematize the use of ‘socio-legal indicators’ and evaluate macro-level claims about social structures.

When I emigrated from the UK to Italy twenty years ago I suffered a profound socio-legal ‘culture shock’. Much of my work since has concentrated on trying to make sense of ‘legal culture’ in Italy. But it has also led me to ask about the meaning and applicability of the concept of legal culture more generally, to seek to understand similarities and differences in the way law is lived in other societies, and the possibilities and consequences of attempts to impose global prescriptions and standards

The two main issues I should like to discuss are:

1.   Comparative methodologies

What is involved in doing cross-cultural comparative work? Are different protocols required when trying to learn about another other society or use it to understand our own? What are the differences between explaining and interpreting? How can we be sure we are comparing ‘like with like’? How can we decide what is salient to compare between places without already knowing them well? How can we avoid using concepts that belong more to one culture in exploring another?

2.   Finding data for comparison

What are the dangers of using cross-cultural indicators of punitiveness, judicial independence, corruption, etc? Do some concepts ‘travel better’ than others? Why? What are the strengths and weaknesses of the research methods described as ‘virtual comparison’, ‘researching there’, and ‘being there’? What is meant by ‘observant participation’? What are the problems of relying on local ‘experts’? Can these be overcome?

Background and Follow-up Materials:

There is no required reading, but the following materials are made available as background and follow-up material.  As case studies to explore the first issue we shall use the discussion of how to do comparative criminal justice in Nelken’s Comparative Criminal Justice: Making Sense of Difference, Sage 2010 (see the book extracts). In particular we shall examine the problems with the independent and dependent variables usually discussed in explanations of cross-national differences in prison rates (See also the power point presentation). We shall also ask about the use of the term ‘legal culture’ for understanding differences in legal practices and outcomes such as differences in court times or what is called corruption (See the articles on legal culture and on corruption as governance). Is court delay a problem or a solution? What does it mean to claim that corruption is a form of governance?  For discussing the second issue, we shall make reference to Nelken’s book Contrasting Criminal Justice, Ashgate 2000. In Chapter 6 of Comparative Criminal Justice, I provide brief summaries of articles by Feest and Murayama, Johnson, and Cain in the earlier book, as illustrations of the methods of ‘virtual comparison’, ‘researching there’ and ‘living there’ We shall also consider William Twining’s contrast of the relative ease with which the concept of human rights can be applied cross culturally as compared to the term corruption (see his paper ”Have Concepts, Will Travel”).

– Nelken, David, 2004. “Using the Concept of Legal Culture.”  Australian Journal of Legal Philosophy 29: 1-26

– Nelken, David, 2010. Chapters 1-4 in Comparative Criminal Justice: Making Sense of Difference. London and Thousand Oaks: Sage.

– Nelken, David, 2010. Chapter 6 in Comparative Criminal Justice: Making Sense of Difference London and Thousand Oaks: Sage.

– Nelken, David, 2009. Contrasts in Tolerance?  Making Sense of Differences in European Prison Rates.Power Point Presentation.

– Nelken, David, 2009.  “Corruption as Governance: Law, Transparency and Appointment Procedures in Italian Universities,” in Rules of Law and Laws of Ruling: On the Governance of Law, edited by Franz Von Benda-Beckmann, Keebet Von Benda-Beckmann and Julia Eckert. Surrey & Burlington: Ashgate. 

– Twining,William, 2005.  “Have Concepts, Will Travel: Analytical Jurisprudence in a Global Context.” International Journal of Law in Context 1(1): 5-40

Further Reading:

– Cavadino, Michael, and James Dignan, 2006. Penal Systems: A Comparative Approach, London & Thousand Oaks: Sage. (Consider their use of national ‘ experts’)

– David Nelken, ed. 2000. Contrasting Criminal Justice: Getting from There to Here. Aldershot/ Dartmouth. (How would the matters discussed by scholars using one of the research methods have been tackled differently using one of the other two methods?)