Socio Legal Critique
One of the goals of this special issue is to raise awareness of the fact that comparison is a natural part of a lot of good science. In practice, we suggest that social law scholars regularly make forms of comparison in different ways, often without explicitly addressing their methods and objectives. The diversity discussed and reflected in the many anthologies of comparative law should not be seen as a problem. Instead of seeking an ideal, prescriptive and methodologically accurate form of comparison, the field should allow for different approaches and objectives. We should make diversity a virtue. What unites many comparative projects of qualitative empirical researchers is that relevant points of comparison are identified in the complexity of existing empirical studies and may emerge or change as the researcher understands the facts and problems more deeply. A good comparison is often not the starting point, or it can be nothing more than a general aspiration or assumption that points of similarity appear in different cultural contexts. What is relevant and significant as a basis for comparison can only become apparent when these particular parts of the social world in all their complexity are understood in their own conditions. This is the heart of the different comparative approaches presented in the articles in this special issue.
Both approaches could be adopted by social law specialists. Indeed, the established position of small-N comparisons in the social sciences should encourage the project of qualitative empirical comparisons in social law studies. However, during a long history of conceptual developments and changes, comparative studies based on a small number of carefully selected cases have been heavily criticized from various sides of the methodological and epistemological spectrum (Steinmetz, Referenz Steinmetz 2004, p. 371). Positivist critics have questioned the scientific value of Klein-N comparisons by referring to their merely “idiographic” nature, suggesting that they are of limited relevance, mainly descriptive (Rueschemeyer, reference Rueschemeyer, Mahoney and Rueschemeyer 2003). A more orthodox “interpretative” critique raises the question of the incommensurability of experiences and therefore the impossibility of a meaningful comparison between different contexts (Steinmetz, Referenz Steinmetz 2004). “Postmodernist” critics have questioned the extension of Western or European (implicitly cultural) categories to non-Western or “dominated” social groups in general from the point of view of “imperialism” (Lyotard, reference Lyotard 1988). These criticisms deserve attention, and by addressing them we can refine the qualitative comparative approach in the field of social law and demonstrate its virtues more clearly. However, if a functional approach is not appropriate, how can we compare laws or legal systems that are substantially different or attempt to solve different social problems? And how to describe the objects of comparison? Some scholars have advocated the study of “law in action” (Palmer, Reference Palmer2005, p. 264; Reimann, reference Reimann2002, p.
679); others the study of “legal culture” (Cotterrell, Referenz Cotterrell, Reimann and Zimmermann 2006; Carnations, reference Örücü, Örücü and Nelken 2007, p. 29). It was argued that comparative lawyers should study different “legal traditions” (Glenn, reference Glenn2000; Reference Glenn, Reimann and Zimmermann2006; Menski, Menski reference2006; Bussani and Mattei, reference Bussani, Mattei, Bussani and Mattei2012), “Legal pluralism” (Reimann, reference Reimann2002; Cotterrell, reference Cotterrell, Reimann and Zimmermann2006) and “globalization” (Twining, reference Twining and Edge2001; Reference Twining, Örücü and Nelken2007) as well as transnational laws. Requests to broaden the scope of investigation have been accompanied by requests to “open” the field to other disciplinary approaches (Nelken, Referenz Örücü, Örücü and Nelken 2007, pp. 16-19). Footnote 1 However, as Örücü points out (reference Örücü, Örücü and Nelken2007, pp. 56-62), scientists face a daunting task when trying to make a comparison between non-Western and non-governmental laws. Both legal culture and legal pluralism as objects of investigation have given rise to considerable differences of opinion (Cotterrell, Referenz Cotterrell and Nelken, 1997; Roberts, reference Roberts 2005) and hardly seem to provide a stable basis for identifying significant differences. The so-called “Small-N” comparisons (Lijphart, Reference Lijphart1971) are ubiquitous in comparative social science research in sociology, politics, history and international relations. This terminology emerged in the 1970s when large-scale comparisons (which characterized the early stages of social science research, often aimed at explaining phenomena worldwide) were eclipsed by comparisons with a small number of cases, often analyzed over long periods of time (della Porta, Reference Della Porta, della Porta and Keating 2008, p.
213). The increasing attention to interpretative social sciences has underscored the relevance of “thick descriptions” of a few specifically selected cases (Geertz, reference Geertz 1973). In the early 1990s, much of the work aimed at limited generalizability, with theories of intermediate or even lower level for which the specificities of the local historical and socio-political context played a decisive role (Mair, Referenz Mair, Goodin and Klingemann 1996). While some scientists have recently advocated the use of a larger number of cases due to the development of new statistical methods for comparing multiple cases (della Porta, Reference Della Porta, della Porta and Keating 2008, p. 213), researchers who emphasize the contribution of interpretive work and qualitative approaches still appreciate comparisons of small N case studies. They are praised for their detailed knowledge of social processes at different points in time and are considered particularly useful for adapting social contexts (della Porta, Referenz Della Porta, della Porta and Keating 2008, p. 211). To begin with the “positivist” criticisms, scholars who emphasize objectivity, rigor and generalizability as goals of social science research have criticized qualitative comparisons with the small N. Theda Stocpol (reference Stocpol and Stocpol1984), for example, argued that theoretically rigorous explanations can only be obtained by comparative research of a number of causes necessary and sufficient for a special event.
Charles Ragin argues that comparative knowledge provides “the key to understanding, explaining and interpreting” (Reference Ragin 1987, p. 6), provided that the techniques are based on Boolean algebra. This implies that a qualitative approach or a small approach to comparison N can only describe; It cannot explain certain phenomena. Sartori sums up the larger dilemma that seems to haunt many social scientists: “Case studies sacrifice generality for the depth and thickness of understanding, even understanding: you know more and better about less (less in extension). Conversely, [large-scale] comparative studies sacrifice understanding in the context – and context – of inclusivity: you know less about more” (reference Sartori1991, p. 1).