Law's Empire: Socio‐legal Empirical Research in the Twenty‐first Century
| Date | 01 June 2007 |
| Published date | 01 June 2007 |
| Author | Paddy Hillyard |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00391.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 2, JUNE 2007
ISSN: 0263-323X, pp. 266±79
Law's Empire: Socio-legal Empirical Research in the
Twenty-first Century
Paddy Hillyard*
The first section of this paper provides a description of the main
findings and recommendations of the report of the Nuffield Inquiry on
Empirical Legal Research, conducted by Professors Hazel Genn,
Martin Partington, and Sally Wheeler. Professor Michael Adler also
published a paper specifically on research training, and the section
also draws upon some of his analysis. The second section gives more
context to the report by presenting some data on the increasing
penetration of law into all aspects of our lives. The third section takes a
critical look at the recommendations and suggests that developing a
research capacity in empirical socio-legal research is not going to be
easy.
INTRODUCTION
At a time when law's empire is steadily expanding, there is a major crisis in
the capacity of socio-legal studies to produce high quality rigorous qualita-
tive and quantitative research into all aspects of the law. In 2004 the Nuffield
Foundation funded an inquiry to investigate the issue. The final report of the
Inquiry and its recommendations were published in November 2006.
1
A
major concern is the age profile of socio-legal academics. At a seminar in
2005 on Education and Training, Professor Ian Diamond, Chief Executive of
the Economic and Social Research Council, presented data on the number of
academics due to retire within the next ten years. It showed that in
266
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Sociology, Social Policy and Social Work, Queen's University
Belfast, Belfast BT7 1NN, Northern Ireland
1 See H. Genn, M. Partington, and S. Wheeler, Law in the Real World: Improving our
Understanding of How Law Works, Final Report and Recommendations (2006).
Copies can be obtained from Lisa Penfold at UCL (lisa.penfold@ucl.ac.uk) and a pdf
version can be downloaded from the Inquiry website at
inquiry>.
disciplines, which have traditionally been associated with socio-legal studies
±law, social policy, and sociology ± over a quarter of lawyers, nearly 30 per
cent of social policy academics, and some 37 per cent of sociologists will be
retired by 2012.
2
In a very few years, many of those who established and
sustained empirical socio-legal studies will therefore probably be sitting in
the Mediterranean or Adriatic sun sipping a Co
Ãtes de Provence, a Chianti or
aPrimitivo ± or perhaps all three.
The Inquiry was conducted by three distinguished socio-legal scholars
Professors Hazel Genn, Martin Partington, and Sally Wheeler. During their
deliberations, Professor Michael Adler, another distinguished socio-legal
scholar, published a paper specifically on research training.
3
The first section
of this paper provides a description of the Inquiry's main findings and
recommendations and also draws upon some of Adler's analysis. The second
section provides a little more context to the Report by presenting some data
on the increasing penetration of law into all aspects of our lives. The third
section takes a critical look at the recommendations and suggests that
developing a research capacity in empirical socio-legal research is not going
to be easy.
AIMS OF THE INQUIRY, THE LACK OF CAPACITY, AND
RECOMMENDATIONS
The specific aims of the Inquiry were to:
·Provide factual information about current capacity for empirical legal
research among lawyers and social scientists, particularly in relation to
non-criminal law and processes;
·Explore the evidence for a shortfall in capacity to undertake empirical
legal research;
·Explain the causes of the problem including incentives and disincentives
for conducting empirical legal research, drawing on overseas experience;
·Bring together key stakeholders in legal education, training, funders, users
of research, and policy makers to develop a shared understanding of the
issues and to identify where concerted action is possible;
·Identify a range of possible solutions; and
·Make recommendations for a programme of initiatives designed to secure
the future of empirical legal research.
The report begins by pointing out the key role that empirical socio-legal
studies has played in civic, political, and academic life and ways it has
informed a wide range of government and other bodies as to how the law
267
2 id., p. 12.
3M.Adler, `Recognising the Problem: Socio-Legal Research Training in the UK'
(January 2007).
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
works in practice. It suggests that it has been invaluable in `revealing and
explaining the practices and procedures of legal, regulatory, redress and
dispute resolution systems and the impact of legal phenomena on a range of
social institutions, on business and on citizens'.
4
It anticipates that demand
for this type of work is likely to expand as Parliament, government, busi-
nesses, and NGOs appreciate the importance of evidence-based research to
inform the development of substantive law, the administration of justice, and
the practice of the law. The report further recognizes the important role that
socio-legal empirical work has played in the theoretical understanding of law
as a social and political phenomenon.
The focus throughout the Inquiry was on empirical research into law and
legal processes, defined as `the study through direct methods of the operation
and impact of law and legal processes in society'.
5
Moreover, the terrain of
the Inquiry was further restricted by excluding criminal law and processes
because, unlike other areas of law, these areas had witnessed a lot more
funding of empirical research and have a much stronger empirical research
capacity.
The Inquiry lasted for over two and half years and included launching a
consultation document, numerous meetings and seminars, and an email
survey of over 400 academics. Although the response to the survey was very
low, if it is assumed that it was broadly representative of the current cohort
of active empirical researchers, over three-quarters of whom are located in
law departments, 7 per cent in criminology/criminal justice, 9 per cent in
sociology and 3 per cent in social policy.
6
Finally, the Inquiry collected a
number of biographical pen-portraits from experienced legal researchers.
7
They make fascinating reading and show how entry to socio-legal studies
was often serendipitous: a chance relationship with an established scholar
was often very important.
The report draws upon a number of different pieces of evidence to
illustrate the current lack of capacity. To begin with, it notes that the
number of applications to the ESRC in the field of socio-legal studies has
remained consistently low and there now appears to be a downward trend.
Second, funders report on the lack of interest in tenders for socio-legal
research. Third, there appears to be a lack of interest in empirical legal
research in general within the socio-legal community. The Socio-Legal
Studies Association, which now has about 400 members, produces a
directory of members' interests, yet few record an interest in empirical legal
research in their profiles . Moreover, the annual conf erences of the
Association, which provide perhaps the best barometer of the current state
of scholarship in socio-legal studies, `demonstrate a preponderance of
268
4 Genn et al., op. cit., n. 1, p. 1.
5 id., p. 3.
6 id., p. 13.
7 id., pp. 16±26.
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purely theoretical and textual analysis rather than theoretically informed
empirical legal research.'
8
This lack of capacity is noticeable in all parts of these islands. An obvious
lack was witnessed recently in Northern Ireland shortly after the setting up the
NI Legal Service Commission.
9
It issued a research brief to a number of
experienced researchers to carry out a survey of legal need in Northern
Ireland but it received only one response and none from any legal or social
policy academics.
10
A more important example of the lack of empirical
capacity relates to the current `war on terror'. Following 9/11, 7/7, and 21/7,
there is a very real need for legal scholars to be monitoring the use and abuse
of anti-terrorism legislation. All the extensive empirical evidence collected
during the thirty years of conflict in Northern Ireland has shown that the use
of emergency powers can sustain and maintain the problem
11
and there is
already evidence that the new anti-terrorism laws are creating widespread
anger within the Muslim community which may encourage more violence.
12
While there has been an expansion in `terrorism studies', as far as I am aware,
there are few socio-legal scholars doing the work on the streets collecting and
collating the information from lawyers, community activists, and individuals.
The capacity problem is unlikely to improve in the near future. In the
2006 ESRC recognition exercise, which assesses whether departments
provide the appropriate training and support for ESRC funded doctoral
students, very few outlets in socio-legal studies applied for recognition,
indeed, noticeable absences included some of the major centres of socio-
legal studies. Adler concludes that:
particularly where empirical socio-legal research is carried out in law schools,
the link between research and scholarship, on the one hand, and postgraduate
training, on the other, is poorly developed.
13
The socio-legal panel recommended that four of the twelve outlets should be
given full recognition ± a success rate of only 33 per cent. Adler commented:
Most of the socio-legal outlets that failed to obtain recognition were law
schools which lacked a `critical mass' of socio-legal researchers or were
unable to access advanced training in research methods that may well have
been available elsewhere in the institution.
14
269
8 id., p. 9.
9 This was established in 2003 for the purpose of `securing (within the resources made
available, and priorities set . . .) that individuals have access to civil legal services that
effectively meets their needs, and promoting the availability to individuals of such
services': Access to Justice (NI) Order 2003.
10 NI Legal Services Commission, Minutes of a meeting held on 5 December 2004, at
11 See, for example, Committee on the Administration of Justice (CAJ), No Emergency,
No Emergency Law (1995).
12 See: F. Ansari, British Anti-Terrorism: A Modern Day Witch-Hunt (2006).
13 Adler, op. cit., n. 3, p. 6.
14 id., p. 7.
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The report suggests that there are a number of interacting factors which go
to explain the lack of capacity. The imperative of all law schools is to
produce skilled doctrinal lawyers. The requirements of professional practice
place very real constraints on the undergraduate curriculum and the type of
staff who can be recruited. The report suggests that there is little or no room
for research training courses similar to those in other social sciences and
rarely are law undergraduates required to complete a dissertation. Even if
they do one, it is unlikely to involve empirical research. There is, therefore,
an absence of scholars who are competent to supervise empirical work and,
in any event, law postgraduates, who have been taught little or nothing about
empirical research, are naturally drawn to doctrinal work. Hence there is `an
almost inevitable pattern of self-replication'.
15
Another very important factor which the report discusses at some length is
the culture of legal scholarship. It suggests that it is a culture characterized
by the lone researcher who is not accustomed to working as part of a team,
and law schools themselves have traditionally been physically and
intellectually isolated from colleagues in the social sciences. Within this
culture, the dominant emphasis is on `doctrine and normative questions in
legal scholarship' and this has directed `the energy of many legal academics
more towards shaping legal reasoning and rather less toward influencing
policy and practice.'
16
Textual analysis and the quick production of journal
articles and legal textbooks has therefore characterized the scholarship.
Professor Hadden, in a submission to the Inquiry, captures the influence of
legal culture well when he notes:
Most researchers who have come through law schools have been trained to
look for and analyse the principles ± the ratio decidendi ± underlying judicial
decisions in difficult or borderline cases at appeal level rather than their impact
in run-of-the mill cases. When they embark on research projects they typically
concentrate on these theoretical and normative issues and find it difficult to see
how empirical survey work will assist them.
17
Adler, in his analysis of the problem, suggests that it is a structural issue
linked to market forces. Most socio-legal researchers are located in law
schools, and law schools lack an incentive to develop postgraduate training
in socio-legal studies. As he puts it:
The costs are too high and the rewards too low when compared with the `rich
pickings' that can result from attracting overseas students to take taught
Master's courses on subjec ts that will enhance students ' professional
careers.
18
In short, the market place discourages this type of scholarship.
270
15 Genn et al., op. cit., n. 2, p. 29.
16 id., p. 31.
17 id.
18 Adler, op. cit., n. 3, p. 11.
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The report suggests that the lack of capacity in social science departments
has different roots. The main problem suggested is that the study of law and
legal phenomena has never been a major focus of social science scholars and
there is some evidence that it is becoming less so because of the decline in
certain subjects, such as social policy and anthropology. Social science
undergraduates know little or nothing about the law and legal institutions,
partly because of a shift in the substantive interests within the social
sciences. Professor Fielding, in another submission to the Inquiry, describes
it in the following way:
Younger social scientists seem to lack the interest in the critical matters of
social structure, power and social class that lead one very quickly to the law as
a major element in constituting society as it is. Sociology has turned from
matters of production to matters of consumption, For example, a great deal of
research attention is now given to how people use mobile telephones. If a
previous generation had had those devices, the issue would have been on how
they were socially distributed, Now the issue is how they are decorated.
19
The report also identifies a number of external factors which have con-
tributed to the lack of capacity. One crucial factor has been the lack of
coordinated and sustained investment in research in the non-criminal law
field. Unlike empirical work in criminal law and justice, where the Home
Office has had, since the early 1970s, a large and relatively stable budget to
fund research, there has been no comparable government investment in the
civil law. There has been no ring-fenced funding ± apart from the Nuffield
Foundation Access to Justice programme ± and legal researchers interested
in civil law and justice compete with other disciplines for research grants
from funding bodies. As a consequence, there has been nothing to encourage
a cohort of academics to focus on this area. Associated with this lack of
investment, there is no centrally maintained basic administrative data on
civil justice matters in contrast to the numerous databases which are now
available on crime, policing, and criminal justice.
The Inquiry team make two broad sets of recommendations to overcome
the capacity problem. First, it recommended a wide range of imaginative
bursaries, fellowships, and grants to encourage and support empirical socio-
legal research. The proposals include research leave and undergraduate
empirical legal studies bursaries, post-doctoral and empirical legal research
fellowships, postgraduate empirical legal research studentships, and
dedicated grants for short courses. Developing the necessary funding poses
a significant challenge but it is suggested that it can be met by individual
funders such as the ESRC, AHRC and charitable funders either acting alone
or in partnership.
20
The second broad set of recommendations is addressed at stakeholders:
Vice-Chancellors, heads of law and social science departments. Here the
271
19 Genn et al., n. 1, p. 33.
20 id., pp. 39±42.
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language in which the proposals are couched is more hesitant and deferen-
tial. It is suggested that `VCs might view the creation and support of
expertise as a long term strategic investment'. Heads of law departments,
who wish to foster a centre of excellence in empirical legal research, `might
be encouraged to consider whether offering an option on law in society . . .
might be useful', `may wish to foster a dialogue abut how to ensure
researchers' workloads can take account of their research', `may wish to
consider how to stimulate and encourage staff to be more active in applying
for research funding', `may want to consider how to shift the balance towards
a greater degree of research income', `may wish to consider collaborative
teaching arrangements with social science departments', and `some law
schools may wish seriously to consider whether they want to become a centre
of excellence in fostering empirical legal research'
21
(italics added). In only
one place does the language get more assertive:
Heads of law department are in a position to provide leadership in encouraging
the inclusion in the undergraduate curriculum of modules on empirical legal
methods, in positively supporting the penetration of empirical legal material
into the reading for core and optional courses, and in facilitating the develop-
ment of courses and research dissertation options that would encourage
students to adopt a more contextual perspective to their study of law.
22
Adler puts forward five proposals to deal with the problem, some of
which are similar to those put forward by the Inquiry. First, a competition
should be set up in which established socio-legal researchers would compete
for a special quota of five or six ESRC awards each year. This would
provide, over a five-year period, some 25±30 trained socio-legal researchers.
Second, the ESRC itself should provide subject specific training in research
methods. Third, law schools should be encouraged to contribute to the
training of socio-legal researchers by collaborating with other areas and
disciplines. A quota of awards could be allocated to recognized training
programmes across law and another social science discipline. Fourth, CASE
awards, without the requirement for a dedicated postgraduate training
programme, could be introduced to encourage better links between law
schools and outside organizations. Fifth, a new post-doctoral fellowship
scheme could be established in which the fellowship was linked to a teaching
post.
Overall, the Inquiry team have done a great service to the socio-legal
community to identity and elaborate on the nature of the problem and in
making a number of recommendations to create a `critical mass' of empirical
socio-legal researchers. I will now turn to the one lacuna in the report, the
lack of any information on law's expansion.
272
21 id., pp. 43±44.
22 id., p. 44.
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LAW'S EXPANSION
At the outset, it must be pointed out that it is a little ironic, for a report
investigating the empirical capacity of socio-legal studies to conduct research
into all aspects of the law, that it provides no data on what is happening to
law in the real world. Professor Richardson, in a foreword to the report,
points out; `society spends more time ``doing law'' and law gets involved in
more and more aspects of our lives'.
23
Yet, the report itself does not provide
any data on how law is getting involved in `more and more aspects of our
lives'. It is therefore illustrative to consider just two areas: the growth in
trained legal personnel and the increase in the volume of statute law.
The growth of the profession has been phenomenal. In 1974 there were
28,737 solicitors holding practising certificates
24
compared with 104,543 in
2006
25
± an increase of some 236 per cent. In 1970 there were 2,518
practising barristers. By 2006 the number of barristers had expanded to
14,000 ± an increase of 456 per cent.
26
The growth of the Bar has therefore
been, proportionately, much greater than the number of solicitors. Another
way of looking at the figures is in relationship to the population. If the two
professions are added together the number of lawyers per head has increased
from 6 per 10,000 of the population in the early 1970s to 22 per 10,000 in
2006.
27
By way of comparison, in the same period the number of police
officers in England and Wales has increased slightly from 22 to just over 26
per 10,000 of the population.
Similar increases can be seen in law schools both in terms of the number
of staff and the number of graduates produced each year. In 1966 it is
estimated that there were 614 full-time academics in just 25 law schools.
28
By 2004/2005 the number had increased to 3,845 and the number of
institutions with students studying law had grown to 104.
29
As regards
students, in 1938 there were a mere 1,500 law students in the United
Kingdom. By 2004/2005, this figure had grown to 62,730 undergraduates
and 23,925 postgraduates.
30
The composition of both staff and students has
273
23 id., p. iii.
24 See Law Society, Trends in the Solicitors' Profession, Annual Statistical Report 2004
(2005) at 6.
25 See Law Society, Trends in the Solicitors' Profession, Annual Statistical Report 2006
(2007) at 11.
26 Law List, 1970 1980 and The Bar Council,
home.cfm>.
27 The legal profession is well represented in Parliament. In 1987 there were 88 solicitors
and barristers in the House of Commons forming some 14 per cent of all MPs. They
currently form 11.7 per cent of all MPs. Interestingly, the number of barristers has been
steadily declining but the number of solicitors becoming elected has risen.
28 J. Wilson, `A First Survey of University Education in the United Kingdom' (1965±
1966) 9 J. of the Society of Public Teachers of Law 1, at 26.
29 HESA figures 2005/2006, personal communication.
30 HESA, at .
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
changed radically in terms of gender balance, social class, ethnicity,
nationality, and social composition and no one can dispute that the teaching
community has been globalized.
31
The growth in the volume of statute law has also been considerable. Since
coming to power in 1997 New Labour have introduced over 400 Acts of
Parliament containing over 23,000 sections. About 14 per cent of the total
acts passed have dealt principally with law and order issues including
policing and criminal justice. In addition, 31,790 Statutory Instruments have
been made by government departments and United Kingdom authorities in
the period. This works out at about two for every hour New Labour have
been in power. While more acts were enacted in previous periods, they were
shorter. For example, in an equivalent-length period, 1931 to 1940, over 500
acts were passed but they contained under 5,000 sections. The bound
volumes occupy less than two feet of shelf space compared with over five
feet for statutes passed under New Labour.
This very selective picture suggests that law is indeed playing an increas-
ing role in the social ordering of modern society ± a shift which would deserve
an empirical study. More and more aspects of our lives are being subject to
legal regulation or restraint. The need for high quality and rigorous empirical
research to investigate the form, substance, and operation of the law in
modern society could not be greater. At the same time, it is clear that legally
trained personnel are playing an expanding role in modern society and more
research is needed to understand not only the work they do but to analyse the
impact that legal training and thinking may have on different areas of life.
FUTURE PROSPECTS FOR EMPIRICAL SOCIO-LEGAL RESEARCH
In this final section of the paper, I wish to develop two arguments to suggest
that the development of a critical mass of socio-legal research is likely to be
difficult to achieve. First, the culture of existing legal scholarship is very
entrenched and would require a fundamental shift in ontological and epistemo-
logical assumptions. Second, the changing political economy of higher
education is likely to have far reaching and unpredictable implications.
32
274
31 P. Thomas, `Legal education: Then and Now' (2006) The Law Teacher 239±53. But
how far these personnel changes have transformed the working environment is open
to debate. In many of the older law schools, oak-cladded walls lined with pictures of
eminent white men and the Queen are still common. The creation of a neutral
working environment for women as well as those from other cultures does not appear
to have been a top priority. Moreover, one still hears stories that there has been little
change in the territorial imperative of the senior common room where seats are still
perceived to be the preserve of white senior male members of the department and are
not to be used by others.
32 See P. Hillyard and J. Sim, `The Political Economy of Socio-Legal Research' in
Socio-Legal Studies, ed. P. Thomas (1997) 45±75.
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The report notes how legal scholarship is characterized by the lone
researcher undertaking close textual analysis of legal material. But it does
not explore the ways in which this form of research is very different from the
research carried out by social scientists. Within the social sciences, the focus
of research is on the use of either deductive or inductive methods to explain
or understand some selected social phenomena. The researcher is perceived
either as independent and objective or intimately part of the construction of
knowledge. In relation to the latter, the crucial characteristic of the
researchers is that they are trained to reflect on the extent to which their
insider/outsider position affects their understanding of the phenomenon
under study. In contrast, the aim of so much legal scholarship is to influence
legal reasoning and produce clarity using a self-referential system. The aim
is not to further the understanding of the phenomena of law, legal institutions
or processes using a range of quantitative and qualitative research
methodologies.
In the past, doctrinal research has dominated the type of research con-
ducted in law schools but partly because of the RAE and the greater
emphasis on research, there has been a transformation in the type of
scholarship produced by legal scholars. It now includes critical legal theory,
sociology of law, feminist theory, queer theory, law and literature, and socio-
legal studies, forming a rich quilt of new scholarship. However, there are two
important characteristics of much of this new work. First, it is still based on
textual analysis focusing either on an existing body of scholarship or legal
material. Second, it draws heavily on postmodern/poststructuralist ideas and
concepts. Foucault's footprints are to be found over so much of the literature.
These characteristics are not accidental. They have a strong materiality in the
culture of traditional legal scholarship with its emphasis on textual analysis
and doctrinal and normative questions. In effect, legal scholars have not had
to make a major transition in their training or their thinking. A further
advantage of this form of scholarship is that there is no need to make
judgements about the reliability or validity of data in the absence of any rules
to judge one interpretation over another. Moreover, the perspective does not
require any judgements on moral and political issues. We have lost, as
Gillian Rose has pointed out, `all sureness of political discrimination'.
33
Postmodernism/poststructuralism is, therefore, convenient, comfortable, and
fits alongside traditional legal scholarship. The comfort zone provided by
this framework and perspective will make it even more difficult, I suggest, to
encourage legal scholars to take up empirical socio-legal work. It will
require a fundamental shift in the assumptions at the heart of legal training.
Much of this new form of scholarship is closer to the work carried out in
the humanities and it may be that in future closer links will be made between
law and humanities rather than with the social sciences. Indeed, Bradley has
275
33 G. Rose, Dialectics of Nihilism: Post-Structuralism and Law (1984) 337.
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argued that law and literature should be part of the undergraduate syllabus in
order to subvert the narrow vocational perspective of law students and to
challenge the views stemming from their narrow backgrounds. It would, he
argues, introduce them to different ideas and cultures, promote imagination,
and provide them with a different way of thinking about the world.
Moreover, it would bring a little passion into liberal legal education and
provide the space to deal with questions about morality and politics which,
he notes, are at the heart of law.
34
POLITICAL ECONOMY
The other reason why it might be difficult to increase the capacity of
empirical socio-legal research relates to the political economy of higher
education. Apart from a brief reference in the report to the RAE, other
aspects of the changes impacting on higher education ± the commodification
and privatization of knowledge, the increased marketization and the new
managerialism, and the associated displacement of academics in university
decision making ± are not discussed. Yet there is now an extensive discus-
sion within the international legal community around the possible
implications for both research and teaching of these changes.
35
The commodification and privatization of knowledge is increasingly
seeping into all areas of university life. As Collier has expressed it, there is
an explicit redirection, experienced at all levels of the institution, towards an
intensified emphasis on the capitalization and exploitation of learning and
`knowledge practices'.
36
The imperative and the opportunities to make
money vary in different disciplines. In the social sciences and law where
there is no obvious product which can be commercialized, academics are
encouraged to be more relevant to the needs of business and to raise more
research money. This latter imperative may, however, help boost empirical
legal research if heads of law schools allow for `buy outs' and are flexible
with teaching loads. With full-economic costing, there is now no economic
reason not to allow for these developments.
276
34 A. Bradney, `An Educational Ambition for ``Law and Literature''' (2000) 7
International J. of the Legal Profession 343±55.
35 For an excellent overview of these changes, see R. Collier, `The Liberal Law School,
the Restructured University and the Paradox of Socio-Legal Studies' (2005) 68
Modern Law Rev. 475. This is a review article of A. Bradney, Conversations, Choices
and Chances: The Liberal Law School in the Twenty-First Century (2003). For the
way political economy has adversely impacted on criminology, see P. Hillyard et al.,
`Leaving a ``Stain upon the Silence'': Contemporary Criminology and the Politics of
Dissent' (2004) 44 Brit. J. of Crim. 369±90; S. Tombs and D. Whyte, `Scrutinizing
the Powerful: Crime, Contemporary Political Economy and Critical Social Research,
in Unmasking the Crimes of the Powerful, eds. S. Tombs and D. Whyte (2003).
36 Collier, id., p. 478.
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The marketization of higher education received increased impetus from
the landmark White Paper published in early 2003.
37
Research, it argued,
must be `financially sustainable' and universities must demonstrate that they
are operating `sustainable businesses'. The message was loud and clear.
Universities had to rely less on state funding and more on income from
students, businesses, and exploitable knowledge.
38
In such an environment,
law schools are going to be even less inclined to support socio-legal
scholarship because it is unlikely to produce good income streams compared
with, for example, as Adler has pointed out, postgraduate courses in inter-
national professional legal education. These demands are already influencing
decisions about the type of staff required for these developments with `all the
related implications that this has for recruitment and retention strategies and
school cultures'.
39
The dynamics of the market may force departments to take a more radical
stance in the light of the threat now posed by private consultancy firms. Over
the last few years the government has turned increasingly to these firms
rather than universities to carry out research. This is explained by two
factors. First, private consultancy firms are in a much stronger position to
respond quickly and effectively to tenders than university research centres.
Second, the government can impose much tighter controls over the owner-
ship of the work carried out, and in any event, private consultants are far less
likely to resist attempts to cherry pick the findings as it may affect their
future tendering prospects. To challenge the power of private consultants,
some departments may therefore follow the market and establish research
companies to replace research centres. This may increase the amount of
empirical social research but it is unlikely that it will be either independent
or critical.
At the moment law schools, because of the high demand from home and
overseas students, have relatively healthy income streams compared with
many other subjects. But this could change suddenly. There is already an
over-supply of law graduates.
40
This may lead to demands from within the
student body for a broader law school curriculum which could include
research methods and other social science subjects so that law graduates
would be more marketable. Some of the more enterprising law schools may
offer students the option to intercalate to obtain an Honours BSc as well as a
277
37 DES, The Future of Higher Education (2003; Cm. 5735).
38 For an analysis of its focus, proposals, and implications for socio-legal studies, see L.
Bibbings, `The Future of Higher Education: ``Sustainable Research Businesses'' and
``Exploitable Knowledge''' (2003) 40 Socio-Legal Newsletter 1.
39 Collier, op. cit., n. 35, p. 490.
40 For example, the principal mechanism that the Law Society appears to use to control
supply at the moment is to warn law students that law is a highly competitive
marketplace and that obtaining a LPC may not guarantee them a training contract. See
pluhttp://www.prospects.ac.uk/downloads/documents/LCAN/Resources/
becominglpclawcabsnote1.pdf>.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
professional legal qualification.
41
What happens to professional legal educa-
tion more generally in universities is open to question. It is possible that
some private company will design and market all the modules for the
professional training, which could pose a real threat to law schools. Whether
such developments would encourage more empirical research because of the
funding streams or discourage it because of the need to do other activities to
survive is all a matter of conjecture.
The third development ± the increased managerialism ± is already having
a profound impact on the way academics work. Following the restructuring
of many universities, with the abolition of faculties and the creation of large
schools, the role of academics in the running of universities has been
substantially reduced while the power and influence of managers has
increased. The new managerialism, however, has not only affected universi-
ties but all walks of public life.
42
It has, as Stuart Hall has argued, replaced
`professional judgment and control by the wholesale importation of micro-
management practices of audit, inspection, monitoring, efficiency and value-
for-money'.
43
It is now very difficult for academics to articulate public roles
or public interest objectives as they have been increasingly displaced by an
`army of managers' who `spread a climate favourable to ``entrepreneurial-
ism''.' In such a context, Hall argues, everybody becomes their own kind of
`manager' and `the market and market criteria become entrenched as the
modus operandi of ``governance'' and institutional life'.
44
The subtlety of the
change is that it is slowly altering the culture of university life by changing
the practices rather than changing minds. It is also changing wider cultural
values to produce a new `habitus'inwhich a new common sense embraces
the habits and practices which `the ``free market'', and consumer focus
conception of ``governance'' requires'.
45
Tony Bradney, in a rigorously researched and highly readable book,
paddles against the tide of current scholarship which suggests that law
schools are being radically transformed by these developments.
46
He argues
that life in law schools is infinitely better than in the past, irrespective of
race, sexuality, class background, and gender. While much is still to be done,
if the ideal of a liberal education is supported, he argues, it is possible to
278
41 For example, the opportunity to intercalate is already offered to medical students in
Queen's University. See .
42
Managerial discourses are now even used in the planning of murders. A babycare tycoon
who tried to hire a hitman recently to kill her ex-partner had drawn up a blueprint
including the following headings: `Background, Goals, Strategy Deliverables, Briefing
and Timeline' thelondonpaper 1 March 2007, at
Satellite/london/lcsearch/article/1157145747039?packedargs=suffix%3DArticle
Controller>.
43 S. Hall, `New Labour's double shuffle' (2003) 24 Soundings 17.
44 id., p. 18.
45 id.
46 Bradney, op cit., n. 35.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
make further advances notwithstanding the hostile political climate. He
draws on Foucault's theoretical perspective and the notion of resistance to
power to support his argument. He notes: `notions of liberal education can
only flourish in the present era if the study of post-modernism flourishes'
(italics added).
47
It is an appealing argument and we can all concur with the
depiction of academic life as `disciplinary' as we fill in our hundredth prior
approval expenditure form, complete another round of appraisals, type up
another postgraduate progress form, record our holiday plans, make guesses
at how much time we devoted to particular tasks, deal with our thirtieth
email of the day, and watch the pile of paperwork reach new heights on our
office floors. But the problem I have with Bradney's argument lies in his
adoption of a postmodern rather than a political economy perspective. It is
not only a question of being unable to resist the power of the market forces
which have been unleashed on higher education, but the new practices are
transforming the wider cultural values of scholarship. Hesitant appeals to
heads of law schools to take steps to encourage empirical research are
unlikely to succeed in the face of mounting internal and external pressures
and the very real changes that are taking place in the culture of university
life.
CONCLUSION
The Inquiry has carried out an important service for the socio-legal
community. Their report needs to be read by everyone concerned with the
future of discipline. Few would disagree that as a society we need the
capacity to carry out high-quality rigorous empirical research not only to
inform policy makers but, more importantly, to further our understanding of
the role of law and legal institutions in modern society. How all the major
forces facing higher education will impact on the future of empirical socio-
legal research is difficult to predict. I have argued that a political economy
perspective points to a much more pessimistic scenario than one based on
postmodernism. The space for critical socio-legal scholarship which chal-
lenges the status quo is steadily been restricted, individualism is replacing a
sense of collegiality, and working lives are being transformed to meet the
new demands of managerialism and market pressures. Hopefully, this
Inquiry will not only prompt further debate about how to deal with the
capacity problem but it will serve as a platform to raise broader questions
about the type of theory the socio-legal community adopts, the type of
research they conduct, and their role and responsibility in an increasingly
unjust social order underpinned by law's advancing empire.
279
47 id., p. 47.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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