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“The law is my data”: The socio-legal in environmental law

When I left practice to start my PhD, I was made to do a master’s degree in research methods as a condition of my doctoral funding. The ‘made’ in that first sentence is wholly intentional. I was quite clear, and quite vocal, that I had no interest in, and no need to study, methods. I knew exactly what form my PhD was going to take: an analysis of EU chemicals regulation using a new governance lens. I didn’t need to know about interviews, or ethnography; I was frankly lost in the advanced modules on statistics; and when we came to talk about autoethnography I thought it hilarious that something so personal, so reflective could be considered ‘research’. Of thirty or so students on the programme, I was the only one based in a law school. Everyone else was housed in the social sciences. I still vividly remember a painful Q&A with a lecturer who had asked me in front of the wider cohort what the ‘data’ was for my PhD. “The law is my data”, I replied. He looked bemused. “And how do you analyse that data? Is it some form of textual analysis?” he asked. “I guess”, I said. The classes on social theory equally left me scratching my head. “Don’t worry”, a friend in the law school said to me, “Whenever anyone says to me that they are a Bourdieusian I tell them I am a DrWhovian.” A decade on and I have come to realise what a wonderful, and very valuable, experience that research degree was. And those who know my writing will realise that I now love to start off a piece with a personal anecdote and so have somewhat come full circle in this regard. Autoethnography rules.

Looking back, it is clear that I was bringing with me to my research degree the arrogance of a city lawyer who had never considered ‘method’. I didn’t understand, for example, that what many of us loosely call a ‘black letter’ approach is a craft which comes with its own internal rules and techniques. I’ve been thinking a lot recently about my research degree and my recent body of work on corporate lawyers (which draws on interviews, surveys, and Bourdieu… but not Dr Who), and how I might put the skills and approaches I’ve learned into practice with my environmental law research. To help, I’ve had my nose buried in the 1999 monograph by Bridget Hutter, A Reader in Environmental Law, in which she pulls out a cross-section of socio-legal work on environmental law from the 1970s onwards. As Hutter sets out, a socio-legal approach to environmental law might be characterised by a focus which is upon law in context (as opposed to a purely doctrinal ‘law in books’ approach), and/or which brings to bear a range of theoretical perspectives “within and across disciplinary boundaries” and/or which interplays theory and empirical data (interviews, surveys, ethnography, etc). Framed in this way it is easy to see much of the socio-legal in environmental law scholarship, and many environmental law scholars would I imagine, think of themselves as taking a socio-legal approach to their work.

For Earth Day 2017, the Journal of Environmental Law made available a number of papers from the journal which take a variety of socio-legal approaches (some empirical, some theoretical, some both). This wonderful work, and work like it, is causing me to ask myself how I might develop an agenda for my own future environmental law scholarship which generates and uses empirical data, wrapped in a strong theoretical lens, to explore, exploit, and evaluate environmental laws. In looking around for inspiration, it has seemed to me that while there are pockets of brilliant socio-legal environmental research, this sub-field is still somewhat lacking. In their 2009 paper, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’, Fisher and others comment that, ‘it can be seen that there is relatively little environmental law scholarship published in law journals with a national or socio-legal focus.’ They go on to add that, ‘The latter is surprising considering that some of the ground breaking socio-legal work has been in the environmental area.’ Eight years on and it seems to me that the overall state of socio-legal environmental scholarship is nascent. Why then is this the case? And why, in particular, is there so little environmental law scholarship which is routed in data (qualitative or quantitative) other than the law? Can it simply be the lack of capacity in empirical legal research in the UK (highlighted by the Nuffield Inquiry on Empirical Legal Research in 2006, and much discussed if not really actioned since that date)? Or is something else going on?

How many of us have PhD students whose ‘method’ is simply a replica of the work we, as supervisors, do?

My recent thinking has also caused me to reflect on what and how we teach students of environmental law, and whether we are inculcating in the generations of future environmental law scholars a flowering of inquisitive modes about, and approaches to, environmental law problems and solutions. How many of us have PhD students whose ‘method’ is simply a replica of the work we, as supervisors, do? And, if so, what does that then mean for the future of the field of environmental law?

As, I hope, is now apparent, I have come a long way in my views on ‘method’. And I am fully committed to the potentially transformative value of empirical socio-legal environmental law scholarship: in putting to test assumptions about the law and the world in which it operates; and in exploring how the law works (or does not work) in environments away from appeal courts and legislatures.

Featured image credit: ‘White Wooden Rectangular Table’ by  Pixabay. CCO Public Domain via Pexels.  

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