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

International Journal of Law in Context, 2011

U. of Westminster School of Law Research Paper No. 11-10

27 Pages Posted: 26 Apr 2011  

Reza Banakar

Lund University

Multiple version iconThere are 2 versions of this paper

Date Written: 2011

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.

Keywords: Social context, contextualisation, Law and Society, socio-legal, legal research, doctrine, legal rule, implementation, interpretation, enforcement, negotiation, methodology, legal pluralism, justice, objectivity, H.L.A. Hart, community, globalisation, late modernity

Suggested Citation

Banakar, Reza, Having One’s Cake and Eating it: The Paradox of Contextualisation in Socio-Legal Research (2011). International Journal of Law in Context, 2011; U. of Westminster School of Law Research Paper No. 11-10. Available at SSRN: https://ssrn.com/abstract=1823394

Reza Banakar (Contact Author)

Lund University ( email )

Sociology of Law Department
Lund, 22200
Sweden
0046 + 46 222 8753 (Phone)

HOME PAGE: http://www.soclaw.lu.se/reza-banakar

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