Let’s turn now to a different route to understanding ‘the foreign’: ethnography. The form of ethnography that we are using in our project has been described as ‘hit and run’ (Rhodes, Everyday Life in British Government, OUP 2011). Rhodes used the method in an elite context (Westminster): we are using it in streets and shopping centres in towns in the north of England and Northern Ireland.
Ethnography seems to me an overwhelming field or method, perhaps because it’s not one with which I am directly familiar, although plenty of legal scholarship deploys it. So one of the things I’ve been doing is reminding myself about the legal ethnographies that I have read in the past, and revisiting them with an eye on their methodological accounts, and where they situate law or legality in their enquiries.
So, for instance, in Order Without Law, (1991/1994) Robert Ellickson combines law and economics theory with ethnographic data gathered over several years in Shasta County, California. Although law is decentred in Ellickson’s account, it is very much present, especially in his description of his positionality, and the research design. Ellickson describes himself as a law professor who had become increasingly dissatisfied with ‘doctrinal’ work. His is a multi-disciplinary work: it couldn’t have been conceived, much less written, by someone who didn’t understand the intricacies of legal doctrine, as well as the economic theory. The law led the choice of field site: it had to be a place where both ‘open’ and ‘closed’ approaches to cattle owners’ liabilities were co-existing geographically. And the opening sentence of the book tells us immediately how Ellickson grapples with the generalizability question:
‘Events in a remote corner of the world can illuminate questions about the organisation of social life’ (p 1).
By contrast, John Heinz and Edward Laumann (Chicago Lawyers 1982/1994 Northwestern University Press) makes no claims to generalisability: it is unashamedly an interview-based, quantitative systematic description and analysis of the legal profession in one major US city. So it’s not really an ethnography in the ordinary sense. As we learn from their reflection in Simon Halliday and Patrick Schmidt’s Conducting Law and Society Research (CUP 2009), Heinz and Laumann were also seeking to develop conceptual or theoretical accounts, inductively rather than deductively. There’s a great description there too, of how they built their working relationship, starting by ‘catching up with each other’s disciplinary understandings’ and about how they built their team of graduate student research assistants.
Probably most encouraging was reminding myself of Patricia Ewick and Susan Silbey’s The Common Place of Law (University of Chicago Press 1998). In the authors’ own words, the book ‘uses stories of everyday life to discover the different ways in which people use and think about law’ (p xi). Almost ruefully, the authors continue ‘ “Collecting stories” and “having conversations” is not the usual way of describing social science research (p xii). Again, Ewick and Silbey work across disciplines, and use both textual interpretation and survey data alongside their ethnographic data. Again, they develop theoretical and conceptual accounts that are generalizable from the specific conversations and interactions that ground the book:
‘By illustrating the diversity of law’s uses and interpretations, we hope to demonstrate that legality is an emergent feature of social relations rather than an external apparatus acting upon social life. As a constituent of social interaction, the law – or what we will call legality – embodies the diversity of the situations out of which it emerges and that it helps structure. … Legality is not sustained solely by the formal law of the Constitution, legislative statutes, court decisions, or explicit demonstrations of state power such as executions. Rather, legality is enduring because it relies on and evokes commonplace schemas of everyday life. Finally, we argue that the multiple and contradictory character of law’s meanings, rather than a weakness, is a crucial component of its power’ (p 17).
I had forgotten that this book deploys the methodological appendix device, explaining that it is like the moment in The Wizard of Oz when the curtain is pulled back to reveal the true nature of the ‘wizardry’.
The other thing I’ve been doing is dipping in to some overviews or primers on ethnography. The field is crowded, but the ones I’ve chosen are all published in the last couple of years, and one is specifically focused on law. I want to highlight three here:
- Anthony Kwame Harrison’s Ethnography: Understanding Qualitative Research (OUP 2018)
- Colin Jerolmack and Shamus Kahn’s Approaches to Ethnography (OUP 2018)
- Steven Lubet’s Interrogating Ethnography: Why Evidence Matters (OUP 2018)
Anthony Kwame Harrison’s book is a reflective guide for those new to ethnography, bringing together practical advice with an introduction to ‘how to think about and understand ethnography as a research, writing and representational practice’. This was – for me anyway – an excellent short overview of the contemporary field; its historical roots in anthropology and sociology; the concerns and orientations that animate its contemporary practice; and its paradigm orientations.
This latter discussion of paradigms was particularly useful in animating a line of thought about the type of knowledge we hope to produce in our project: where do we sit in a choice between positivism (which underpins much legal and political science scholarship); interpretivism; and critical paradigms? I think we may be able to make explicitly critical contributions to the literature (in particular, Ivanka is already working in critical disability studies), and that we have already published what are essentially positivist analyses of post-Brexit health governance (Fahy et al 2017, 2019); but that our predominant paradigm for this project will be interpretivist. In looking at the language deployed by people with whom we engaged in conversation in the street, during particular weeks, in northern English and Northern Irish towns, we are seeking to understand their realities through their meaning-making, meaning being spatially and temporally contingent (p 155). This may present some challenges when seeking to publish our work, in that we will have to exercise care not to present our data as inherently generalizable, yet we will want to offer insights that are broad enough to be publishable.
Harrison’s book explains some of the giants of the field (Malinowski 1922/1966; Geertz 1973; the Chicago School and urban ethnography) and some of its more recent causes célèbres (especially Goffman 2014, of whom more later; but also Harrison’s own work 2009). I learned a lot from the strong emphasis on writing as an ethnographic practice: from ‘scratch notes’ taken in the field, through to longer-from written fieldnotes, which are reflections captured soon afterwards, and finally to polished narratives and analyses presented for publication. ‘For the ethnographer, writing is simultaneously a means of recording data, analysing data, and representing social life’ (p 118). I began to understand the ways in which some ethnography centres embodiment (where the ethnographer picks fruit alongside migrant farm workers (Holmes 2013) or learns to dance (Hancock 2013)) rather than discourse or text. I noted Harrison’s idea of credibility, as encompassing reflexivity, transparency and sincerity (p 183-184), and that we should expect a certain degree of messiness in a credible anthropological account: ‘the absence of unexpected twists and turns tends to generate skepticism’ (p 184). And I reflected on the idea of ethnography as ‘bricolage’ (p 123, drawing on Lévi-Strauss 1966): ‘cobbling various data and utilizing different modes of representation in such a way as they hang together through a sense of narrative coherence – and occasionally through intentional, effective disjuncture’ (p 123). I don’t know of any law publisher which accepts that kind of approach to data and its analysis: this is going to be a challenge for us.
What I didn’t find was anything on ethnography as a team effort: the underlying assumption seemed to be of lone scholarship, which is very far from what we are trying to do in our project. Also, for anthropology-based ethnographers, what we are doing will barely count as ethnography, because we simply are not ‘in the field’ long enough.
Colin Jerolmack and Shamus Kahn’s Approaches to Ethnography (OUP 2018) isn’t a ‘how to’ manual on ethnography, but a reflection on how different approaches to ethnography work out in different contexts. By ‘approaches’, Jerolmack and Kahn mean this:
‘To make fieldwork manageable in a way that is methodologically defensible (ie, not arbitrary), the ethnographer must decide what aspect of social life will be privileged in data collection or analysis … That is, she must select what we call an approach to ethnography.’ (p xii)
They distinguish three schema of approaches: micro/meso or organizational/macro; people & places / processes & mechanisms; dispositions / situations. Reading the contributions to the book, which are descriptions of existing ethnographies in extremely varied contexts, leads me to provisionally place our project in the macro; and in people & places; and the situational rather than the dispositional.
Although their fieldwork is temporally long-form, and ours is ‘hit and run’, like Leslie Salzinger and Teresa Gowan, (in Jerolmack and Kahn 2018: 89-90), we are seeking to make visible strands that resonate in our field data, and draw out their links to larger structures. We are interested in at least one aspect of subjectification: the meanings people make of their social conditions (Salzinger and Gowan: 91). Of course our research sites are complex, and the cultural structures embedded therein flow “all the way down” (Geertz 1973: 28-29): that’s a way to make sense of the idea that ‘all micro is macro, and vice versa’ (Salzinger and Gowan: 92). I absolutely loved the account of a reflexive relation between theory and data analysis, and a scholarly flexibility, that is summarised as Burawoy’s (1998) “Be Bold, Be Wrong!” (Salzinger and Gowan: 70).
Douglas Harper (in Jerolmack and Kahn 2018: 110) reminds me that we need to create some rich evocations of the places that we studied; and to place them in the times in which we studied them. We chose significant dates for our fieldwork, such as the week leading up to ‘Exit Day 1’ (29 March 2019) and the week of the European Parliamentary elections (23 May 2019). Harper also reminds us that early anthropological work, such as Malinowski’s ( 1961) seminal work in the western Pacific, ‘appeared to be steeped in respect for difference’, but actually, as the publication of his diary eventually revealed, really was not. I know that my co-investigators and I have deep respect for the people we seek to draw into our conversations: I can only hope that those people understand that and don’t misinterpret our intentions.
The book ends with a discussion of abductive reflexivity (Forrest Stuart, ‘Reflexivity: Introspection, Positionality, and the Self as Research Instrument – Toward a Model of Abductive Reflexivity’, in Colin Jerolmack and Shamus Kahn Approaches to Ethnography: Analysis and Representation in Participant Observation(OUP 2018)): a process where ethnographers embrace their otherness, and uses ‘both inductive and deductive models of inference. In other words, it is both “bottom up” (data driven) and “top-down” (theory driven).’ (p 221) I think we can deploy that kind of approach, although our ‘hit and run’ limitations mean that testing and re-testing initial hypotheses will have to come through reflection on the data we have, rather than returning to the field to gather more data.
Steven Lubet’s short Interrogating Ethnography: Why Evidence Matters (OUP 2018) is – at heart – a plea for accuracy in social sciences (p 137), especially ethnographic work. These points resonate with Harrison’s ‘credibility’ and ‘ethnographic comportment’. Lubet tells the story of how his infuriation with Goffman’s (2014) acclaimed book, and what, to him as a law professor must have been inaccurate claims, led him on a forensic journey of checking the veracity of the truth-claims made in a range of ethnographic work, from the point of view of a lawyer, checking the evidence. His test throughout is ‘would a judge in a criminal or civil trial accept this claim, without corroboration?’. Essentially, this is a detailed and compelling application of Mitchell Duneir’s (2011) imaginary ‘ethnographic trial’: the researcher imagines themselves accused of standing trial for malpractice, in offering a reader an unreliable rendering of the social world.
In natural, and social, sciences, replication of results is the ‘gold standard’. But the study we are doing, which is both temporally and spatially contingent, cannot be replicated. This will mean that we will need to think carefully not only about the specificity of the claims we make (a point I’ve made already, above), but also about how to present as reliable an account of the meaning-making that we found as possible.
Of course, we know that, even in the natural sciences, false claims are made from data which is incomplete, or in either honest or dishonest interpretations that turn out to be mistaken (Horton 2015; Smith and Roberts 2016; Ionnidis 2005, all discussed p 129-130). As Richard Horton of the Lancet puts it, ‘the quest for telling a compelling story” too often leads researchers to “sculpt data to fit their preferred theory of the world”.’ (p 130). So here, we need to be careful in our project that the ‘inconvenient’ (for a line of thinking or theory that has emerged) (p 66) phenomena that we encounter in our fieldwork are not suppressed.