Islands,Confluences and Estuaries: When the Legal Doctrinal Meets Social Science Methodologies

Abstract

Encounters between scholars conducting doctrinal legal research and those using methodologies traditionally associated with the social sciences can be antagonistic. Students and researchers without the confidence to successfully navigate these tensions especially struggle from this methodological friction. It does not need to be this way. These encounters, like a river’s encounters with islands, confluences and estuaries, can enrich the field. I use river ecology and experiences from a recently completed PhD thesis in a law school dominated by doctrinal legal research to make this point. Social scientists collaborating with legal scholars may benefit from an improved understanding of these tensions.

Introduction

In the social sciences, the methodological divide has primarily been between quantitative and qualitative approaches (Venkatesh et al., 2013). In law, the divide is largely between what legal academics call “doctrinal” and “non-doctrinal” (or “social science”) research methodologies. Although many social scientists stick to their own methodology, they generally accept other conventional approaches across the divide as valid, insightful and acceptable (Knappertsbusch, 2023). In contrast, the increased use by legal scholars of non-doctrinal research methodologies often associated with the social sciences – socio-legal research, historical-legal research, quantitative empirical legal research, etc. – is viewed, at least in some quarters, with considerable suspicion. There are of course many exceptions, places where unfamiliar methods are welcome, but in the law faculty where I recently worked and completed my PhD, student research proposals employing these approaches were mostly tolerated but generally unwelcome. For some, these methodologies are not legal methodologies.

The hostility can go both ways. Some scholars utilizing these less conventional methodologies call traditional doctrinal work outdated, without rigor and overly subjective (Langbroek et al., 2017; Rubin, 1988). They suggest that doctrinal scholars lack methodological self-awareness. This antagonism causes unnecessary conflict and stress, especially for early-career researchers who wish to experiment but do not have the confidence or experience to challenge strongly held methodological views.

In this article, I use my own experiences in the midst of these currents to show how these divisions impact budding scholars and to make a case for how methodological diversity enriches the field by often producing greater insight into law and legal institutions than if they stand alone.

Doctrinal Legal Research – What It Is and Why It Predominates

Doctrinal research is the primary methodological approach used in legal scholarship (Hutchinson, 2017; van Gestel & Micklitz, 2014). It is often referred to as “traditional legal scholarship” and has been called “mother’s milk” to academic lawyers (Langbroek et al., 2017; McCrudden, 2006). Doctrinal research seeks coherence in legal principles, rules and concepts (McCrudden, 2006) by clarifying ambiguities, filling gaps and identifying and analyzing essential features (Hutchinson, 2017). In social science, this attempt to render law intelligible might be described as the construction of explanatory “models” from legal material which are then tested against that material, though the models are tested in a very limited sense compared with social science testing (McCrudden, 2006, p. 634). Unlike a sociologist who uses interviews to collect qualitative data or an economist who designs a survey with quantitative results, a doctrinal legal researcher’s primary tools are legal texts like statutes and court judgments. This is why doctrinal legal research is said to adopt an internal viewpoint in a “sealed system” – it considers the legal system relatively autonomous and ignores, for the most part, social, economic and political context (McCrudden, 2006; Vick, 2004, p. 178).

Doctrinal analysis moreover is often normative and prescriptive, in that it usually argues for the “best” answer to a legal problem in seeking to influence law’s development (McCrudden, 2006; Vick, 2004). Doctrinal scholarship also increasingly involves statutory interpretation that largely relies on authorities that, for the most part, are of the sealed system: text, legislative history, purpose, canons of interpretation (principles such as “the expression of one thing is the exclusion of another”) and public policy (Farber, 2000; Kernochan, 1976). An example of doctrinal research would be an analysis of two recent conflicting judicial decisions. The project would use legal precedent, statutory interpretation, logic and perhaps, the different impact that the decisions would have on society, to argue for or against one of the judgments. But arguments about the impact on society would typically employ rhetoric and logic instead of primary observational data.

Doctrinal methodology predominates in legal scholarship because of the legal academy’s close relationship with the legal profession (Bradney, 2010). Historically, students learned law from courses taught by lawyer associations and through apprenticeships (Spanbauer, 2019). It was not until after World War II that U.K. law schools began primarily hiring academics instead of full-time practitioners. Today Australian and U.S. law schools, as other examples, continue to unambiguously train practitioners and, until recently, incentivized their academic staff to focus on practical legal training over research output. Law training’s practical, professional nature in turn influenced the identity of legal scholarship (Bradney, 2010; Feldman, 2004).

As an illustration, legal scholars were traditionally not interested in creating new knowledge through experiments or generation of data like social scientists; instead, they aimed to collect information about legal decisions and present it persuasively to practitioners, courts and lawmakers. While a social scientist may aspire to publish novel findings in their field’s top journals or as a book with a prestigious university press, a legal scholar’s greatest achievement has historically been the publication of a treatise aimed at the legal profession on a major area of law that diligently identifies and evaluates the field’s principles (Vick, 2004).

Antagonism Between the Camps

Despite doctrinal research’s grip on legal scholarship, over the past few decades methodological criticism has intensified as law faculties are increasingly and more tightly assimilated into the broader intellectual and scientific environment of universities, as legal scholars see opportunities in methodological experimentation and as grant awarding committees, often populated with members from other academic fields, show a preference for non-doctrinal legal scholarship (Peat & Rose, 2024). A main criticism is law’s lack of clear methodological direction. A cursory look at research articles in law journals, even the most prominent, reveals that legal scholars have not been traditionally concerned with the methods they follow (Langbroek et al., 2017). Social scientists may be surprised that there are almost never methodological sections or discussions in typical legal scholarship. van Gestel et al. (2012, p. 3) describe the “elephant paths” of doctrinal methodology. Everyone just blindly follows the wide, obvious paths created by their big predecessors. We know how to follow but the roadmap is never explicit. In the same vein, Chynoweth (2008, p. 35) suggests that legal method and analysis involves reasoning “often at a subconscious level” with the aim of creating arguments that accord with “accepted, and instinctive, conventions of discourse.” This type of approach – subconscious and instinctive – does not bode well for legal researchers conversing with scholars from disciplines with rigorous, explicit, time-tested methodological conventions. Indeed, the field of law has been said to be “bedeviled by a gnawing sense that it should adopt the methods of other disciplines but it is uncertain how the process is to be accomplished” (Rubin, 1988, p. 1835). Conventional legal scholarship has been called “scientifically stagnant” and “no longer very much en vogue and looked upon with suspicion” (Schebesta, 2018, p. 23; Smits, 2017, p. 207).

On the other hand, critics of legal scholars experimenting with non-doctrinal approaches frequently attack the quality of the empirical scholarship that they produce (Zeiler, 2016) (I mean “empirical research” to include both qualitative and quantitative research based on observation). In the United States, the sources of this criticism can be partially traced to training and culture (Chin et al., 2024). Despite the recent increase of PhDs in cognate fields, such as economics, political science and history (McCrary et al., 2016), the highest degree of the vast majority of U.S. legal scholars (especially below the top tier schools) remains the postgraduate Juris Doctor, which is not a research-based degree and generally does not include courses on social science research methodology (LoPucki, 2016; van Gestel et al., 2017). Meanwhile, most academic U.S. law periodicals – usually called “law reviews” – are not peer-reviewed but are instead run by law students, who act as both editors and reviewers. With rare exceptions, law students do not have the expertise to ensure the quality of non-doctrinal submissions, particularly quantitative empirical work that can draw heavily on economic theory (Hensler & Gaspperetti, 2017), and they likely presume, rather than require proof of, author competence in empirical methods (Zeiler, 2016). Although peer-reviewed law journals, in contrast, can draw from reviewer expertise, the lack of peer reviewing culture, incentives to review and experts in these types of methodological approaches hinders peer review’s effectiveness (Chin et al., 2024). It remains unclear whether, given these challenges, non-law journals are receptive to empirical research conducted by legal scholars, but the proliferation of law journals seeking empirical work appears to encourage legal scholarship to remain there (George, 2006; Heise, 2011) (van Dijck et al. (2018) showed higher percentages of empirical work in “extra-legal” journals but did not specify author fields or distinguish between legal and non-legal empirical work).

Law and economics scholarship, called the most important legal methodology in the United States behind doctrinal (McCrudden, 2006), appears to have avoided some of the methodological criticism aimed elsewhere, or at least has thrived despite the criticism. Some of its immunity may derive from the rigorous peer review to which it is subjected by the prestigious peer-reviewed law and economics journals affiliated with the University of Chicago (recognized for its expertise in economics) or the American Law and Economics Association, as well as its incomprehensibleness to other legal scholars (Vick, 2004).

Nevertheless, the criticisms of doctrinal scholarship, whether accurate or not, do not help in bringing together law scholars of different methodological bents. Instead, they may backfire, causing doctrinal scholars to become defensive and snap back. Some doctrinal scholars argue that the world of legal research is “colonized by multi- and interdisciplinarians who do not understand what it means for law to be a normative science” (van Gestel et al., 2012, p. 9). Others feel that empirical research cannot describe the world well enough to be useful to legal research (Hinghofer-Szalkay, 2018). Focusing on methodology “can easily drive legal researchers out of their comfort zone,” compounding the defensiveness and leading doctrinal legal scholars to argue that “true” legal research does not need explicit methodologies (van Gestel et al., 2012, p. 4). In the Netherlands, some doctrinal legal scholars suggest that interdisciplinary work has little to do with legal scholarship (van Gestel & Micklitz, 2014). Meanwhile, academics outside law sometimes argue that the qualities of doctrinal research – conceptual constructions, coherence and abstract theory – cannot be the basis for “real knowledge” (Smits, 2012, p. 5). Thus, the conflict rears its real head: what “true” legal research is and what “real” knowledge is.

Here, I do not attempt to settle these broad philosophical questions because “[w]hat is considered ‘legal’ to one can be seen as ‘extra-legal’ or ‘non-legal’ to another” (van Dijck et al., 2018, p. 116). Instead, I acknowledge methodological differences but build my arguments from the position that all these approaches – doctrinal and non-doctrinal – can be the basis for real knowledge. Whether that generated knowledge is useful, valuable and closely related enough to law to merit pursuing in law faculties will be discussed.

River Journeys

Let me begin my analogy. Picture doctrinal legal research as a river. Where I was in Malaysia, it is roaring. Its source, let us say, is an ancient, humongous glacier. The water starts out crisp and fresh. It is pure. But rivers, like methodologies, have bumpy journeys. Sometimes they flow cleanly down gentle slopes, but at other times they crash through steep ravines or slither across muddy plateaus. Over their long trip to the sea, the purity of their waters will be challenged and, inevitably, over time, diluted. In this article, I examine three specific encounters in a river’s journey: when it meets islands, confluences and estuaries. Each of these points correlates with a specific environment that hosts encounters between doctrinal and non-doctrinal research: the islands are pockets of scholars, largely at the mercy of the river’s flow, seeking to experiment with non-doctrinal methods; at the confluences, non-doctrinal legal research, stronger here, injects itself, like a tributary, into doctrinal work; and at the estuary, the mix of fresh river and salty sea water is so profound that adaptation and compromise are necessary. At first, doctrinal research dominates, then it cedes some ground to strengthening alternative methodologies, and finally it finds a way to combine with another powerful force. At its core, the analogy asks: what can we, as legal scholars grappling with methodological change at these various points in space and time, learn from nature’s adaptation to change?

Extended analogies in academic writing are not just for show. They have a specific purpose. Here, I compare doctrinal research to a river as a way to re-conceptualize the encounters between the doctrinal and non-doctrinal. Analogies can be helpful because they provide distance from and suspend personal stakes in the immediate object of concern. This in turn makes room for reflective consideration and bridges the gap between an idea and personal experience (Carter & Pitcher, 2010; Ervas et al., 2018). They are successful when the system of relations in the familiar domain (the “source domain”; here, the river) hold true in the less familiar one (the “target domain”; here, doctrinal legal methodology) (Gibson, 2008).

Using an extended analogy to nature in an academic research paper almost certainly repels some readers’ sensibilities about what proper academic scholarship looks like. But my aim is not to persuade everyone. Instead, I hope the analogy resonates, in some manner, with those precariously navigating multiple methodologies, and if it unsettles some readers, or at least raises a question in their mind about what scholarly writing can be, then I will consider it a success. I chose to analogize a natural object because beneath the seeming conflict, violence and constant change on a river’s and on nature’s surface lies a deeper, unperturbed harmony, balance and peace. Just dip your head beneath the water’s surface or lie still on a bed of pine needles and you will know what I mean. I hope to persuade that the encounters between legal research methodologies can also be viewed this way. On the surface, in some places, there is turmoil. Beneath it, if one listens carefully, is a quiet melody.

Islands

In the middle of our river, a small island has formed from the soil of the banks and the sediments carried downstream. The river can continue to build the island or it can wear it down. In some places, where the river is gentle and accommodating, it carries new bits of sand and soil to reinforce the island’s shores. Birds and plants find a home. The island pays back the favor, filtering the stream’s sediment and pollution (Yang et al., 2022). It slows floodwaters. In other places though, the current is strong and hostile. Here, the flow chips away at the island’s foundations. The birds fly away and the plants slowly disappear. Eventually, the island disappears, its grains escaping to more hospitable terrain.

Into doctrinal research’s flow wade increasing numbers of legal scholars, PhD students and even some master’s and undergraduate students with a mind to experiment. Where alternative methodologies are still gaining a foothold, the newcomers, depending on the attitudes of their doctrinally inclined colleagues, may face a hostile reception. The newcomers may be able to form a strong enough group to gradually build an island that can withstand the criticism and, with enough support, encouragement and cooperation from their doctrinal peers, diversify and enrich the community’s legal scholarship. At other places though, lone scholars may stand in mid-stream, trembling from the force of the friction around them. These isolated islands face great peril. They may give up their experimentation. They may move to more hospitable environs.

There are few instances of published methodological personal experiences of this kind. Schebesta (2018) describes an empirical legal research workshop in the Netherlands during which her suggestion to use software to code content was met with “some adamant resistance.” In Germany and many civil law countries, quantitative legal scholars “may find themselves outsiders of the legal communities, as their work is not considered relevant” to normative legal scholarship (Chang & Wang, 2016, p. 1). This resistance, not only to the use of software but to quantitative legal research and social science methods more generally, creates hazards for newer and more vulnerable academics who wish to expand their methodological repertoire.

I completed my JD in the United States and my PhD in Malaysia. Like in the United Kingdom and in contrast to the United States, law students in Malaysia qualify to practice law through the undergraduate Bachelor of Laws program and, generally, need a PhD in law to be hired for an academic position. In my observation, law academicians in Malaysia tend to publish mostly doctrinal research with comparative aspects, with some using supplemental interviews of experts. Socio-legal work involving surveys or interviews of lived experiences in the social sciences tradition is unusual; quantitative empirical work involving large data sets is virtually unheard of. Methodological training for PhD students includes some social science methods but these are not a major focus. During my PhD studies, most students skipped the two classes of quantitative training. There is little discussion of research methodologies among academic staff other than in the context of teaching courses on research methodology. When quantitative legal research is raised in meetings or workshops, skepticism, frustration and – at least to my ears – a bit of fear characterize the comments. After I presented initial quantitative results from some citation analysis work, a senior law faculty colleague commented (with another nodding in agreement), “This is not how legal research is done.” These types of remarks hit hard (Skakni, 2018). I felt like an island quickly wearing down.

This article is intentionally personal because methodological choices are personal. They reflect our research values and the way we seek to contribute to our field. It is also personal because being a non-doctrinal island in a doctrinal stream means constantly feeling the friction of the flowing waters. This friction takes a toll. I hope that my sharing can provide some solace to other early-career researchers who have chosen a less conventional methodological path in an environment that is still in the process of accepting it. These accounts can be particularly helpful in inspiring and encouraging PhD students experiencing their own struggles (Carson & Niklasson, 2023).

Examining one’s own experiences to draw larger lessons is a growing academic research approach called autoethnography (Stanley, 2015). It foregrounds researcher emotions and experiences to show the inevitably subjective nature of knowledge production (Butz & Besio, 2009). Most academic scholarship though seeks objectivity, or at least the appearance of it. Explicitly personal experience ungrounded in the observable, the relevant academic literature or even common sense may seem antithetical to our shared enterprise of seeking objective truth. Wariness, therefore, is justified. Excessive introspection can devolve into gratuitous navel-gazing. Autoethnography can in some instances come across as overly egotistical. After all, writing about oneself and labeling it scholarship is only possible if one thinks their experiences are important enough for others to learn from. Autoethnography is also, of course, constructed discourse in that it draws upon flawed memory and performatively presents itself to the public (Stanley, 2015). Reliability and validity are necessarily concerns (Carson & Niklasson, 2023; Ellis & Bochner, 2006).

At the same time though, there is a certain generosity of spirit in autoethnography in that it requires a baring of one’s weaknesses and examination of struggles and challenges (Liu, 2024). It allows greater freedom than conventional academic research to share not only what is in the mind, but also what is in the heart. Writing, especially personal writing, can also be the place where one can ignore everyone else’s ideas and reveal one’s true self (Ndlovu, 2024). There are many other, less revealing ways one can produce an academic publication. So long as personal perspectives are transparently disclosed as such, there is no reason why they cannot contribute to rich and insightful research. The best autoethnography also can provide “insights and themes that are helpful to people in conceptually comparable, but different, situations” (Stanley, 2015, p. 149).

For PhD law students, early-career researchers or contract staff, methodological tensions and debates can be confusing, disorienting, disheartening and even threatening. The clash between methodological camps, where it exists, is not only about how to do research; it is also about who decides how to do research, whose voices prevail and who must back down. The PhD journey is “as much emotional and behavioural as it is intellectual and cognitive” (Howells, 2014, p. 58). Autoethnographic accounts can help less experienced researchers understand the emotional aspect of these encounters, the hidden agendas veiled by vague, technical terms and the development of their positionality – the shaping of identity by power and social position – within larger streams of historical and ideological conflict.

I suggest that when we read autoethnography, we should, as always, be skeptical and critical, taking nothing for granted and always wondering whether we are getting anything more than a partial picture of the truth. In auto-narrative, narrators are reliably unreliable. When reading this article, one may wish to view the academic portions with citations to authorities as a conventional research paper, but when reading about my personal experiences, it might be best to consider these a subjective, partial side of a story that is susceptible to flawed memory and that is likely to place me in a positive light, or at least a positive-enough light. This is not a defect though. It is exactly what autoethnography aims to demonstrate.

My PhD research involved the collection and analysis of citations in International Criminal Court (ICC) judgments. I aimed to identify patterns that might indicate inconsistencies, anomalies or excessive flexibility in the ICC’s interpretative practices. One of my hypotheses, for instance, was that the ICC cites African domestic sources of law (like national judgments or statutes) less than non-African domestic law sources, even in criminal cases from Africa. Some of my colleagues were mildly supportive of (and curious about) this approach, and one or two were enthusiastic. Others, I perceived, were outright hostile or dismissive. The less supportive recommended that I study in a different faculty or department, such as computer science or statistics. They warned me that the viva voce examiners would not understand my work. The tilting of heads and raising of eyebrows during this advice said, “Don’t forget, I warned you.”

During the second of three PhD seminars before reaching the viva voce, the examining panel unusually took over an hour behind closed doors to discuss whether I should pass. Their concerns, I learned when I rejoined the online call, were methodological – not that I was using a wrong methodology, but that doctrinal was not my primary methodology. I was directed several times to include more “legal arguments” into my thesis. “What exactly do you mean by the phrase ‘legal argument’? Do you mean a doctrinal argument?” was met with: “If you want to get a PhD in law, surely you must know what a legal argument is.” This type of deflective discourse is an unfruitful exchange that does nothing to bridge the divide. As another example, when I suggested to a different colleague (I was working at the same institution where I was studying) that empirical legal research with descriptive statistics was a legitimate approach to a PhD in law, responses included: “Well, I’ve never seen one” or “Do you have a PhD in law?” (implying that because I did not have a PhD, how could I possibly know what a legitimate methodology was when compared to someone who already had a PhD). Methodological disagreements must be confronted head on, transparently and in good faith. Though difficult, such discussions are the only way to understand the assumptions we hold and the meanings of the terms we use. After some of these exchanges, I could not help but think the worst. Should I quit the PhD? Should I transfer to a different institution? Should I start over with a purely doctrinal approach? Sometimes, I felt sick to my stomach and had trouble going to sleep. When the student is an island and a supervisor, examiners or professors are part of the river, calling up the nerve to challenge can feel impossible.

Confluences

Rivers and streams for some time travel separately, carrying their own wildlife, chemicals and stories. Geography and gravity sweep them, slowly but inevitably, to converge into what are called confluences. The channel junctions where confluences occur are characterized by highly complex patterns of water and sediment flow (Best, 1986). The mixing and swirling create lagoons full of diverse life that contain more native fishes and riparian plant species than would otherwise be there (Moyle & Mount, 2007; Osawa et al., 2010). In the Swiss Alps, a large glacier-fed stream called the Rhône meets a smaller glacier-fed tributary, the Mutt. Because the Mutt is further from its glacial source, its plant and animal life is richer than the Rhône’s. This difference makes the Mutt the arguable driver of the Rhône’s faunal biodiversity, even though it only adds about 10% to the Rhône’s water. The confluence even seems to create conditions that allow for life that would not survive but for it: plants and animals, for instance, that cannot normally survive in water below 8°C (flatheaded mayflies, stoneflies, caddisflies and non-biting midges) have been found in water below 6°C downstream of the confluence. Remarkably, Mutt fauna traveling up the Rhône from the confluence even have a positive effect on upstream wildlife (Knispel & Castella, 2003). Some may see the Mutt as a polluter of the Rhône’s glacial purity, as they see social science methods taint doctrinal’s virtues. They may see how the Mutt irrevocably alters the Rhône’s composition, changing it forever below and even slightly above the intersection. What I suggest, however, is that the better way to understand the confluence is to see that, like the Mutt to the Rhône, social science methodologies enrich and transform mainstream legal research without detracting from it.

This complementary aspect is clearest in multimethod and mixed-method studies (Nielsen, 2010). “Multimethod studies” use multiple methodologies in the same study while “mixed-method studies” do this too but, rather than keeping the methodologies largely separate, also integrate (or “mix”) the data or results to provide new insights from the mixing (Anguera et al., 2018). Combining quantitative description and explanation of legal phenomena with qualitative insight into the nature of legal processes, as an illustration, captures the complex relationships between law and the social world better than with the use of only one of these methods (Nielsen, 2010). As another example, historical institutional research combined with fieldwork can provide novel insights into institutional functioning (Marshall, 2018). A multimethod legal study used qualitative witness statements to study the nature of attacks during the Darfur, Sudan genocide complemented by quantitative statistics to locate specific crime sites (Nielsen, 2010). (I distinguish these methodological combinations from what is commonly called “interdisciplinary legal research,” though there is clear overlap. Interdisciplinary legal research, fairly common especially in the United States and, for the most part, accepted there without resistance, combines fields like law and literature, law and economics and law and politics. Its focus though is arguably more on the combining of, and synergy and friction between, the content of the fields and less on their methodologies (Roberts, 2017)).

Many assert that doctrinal research is not fully realized until observation supports it and that without the broad doctrinal comprehension of what the law is, empirical work (both quantitative and qualitative) is incomplete (Davies, 2020; Towfigh, 2014; van Gestel & Micklitz, 2014). Chang and Wang (2016) suggest, for instance, that causal-identifying quantitative findings are an essential foundation to normative claims. Deplano (2019) posits that the failure to consider the crucial function of norms in law and the value of doctrinal legal argumentation is a blind spot in some statistics-based empirical legal research. Taekema (2018) makes a case for combining legal philosophy, socio-legal studies and doctrinal scholarship to both corroborate results and complement different insights in rule of law research. There can be synergy then, between the non-doctrinal and doctrinal. The complexity and multi-layered quality of legal doctrine can combine with the observational qualities of empirical research to make a richer, more diverse, more alive river. Argyrou (2017) combines qualitative case studies of social enterprises (a new type of socially and environmentally conscious enterprise) in Greece, the United Kingdom and Belgium with doctrinal analysis of social enterprise legislation to assess how different legal forms support the enterprises’ efforts to be participatory and inclusive. Hinghofer-Szalkay (2018), as another example, shows how the presence of foreign case law in European court judgments cannot be evaluated by counting the occurrence of words in constitutions alone; rather, an understanding of how the judges use the foreign law and of the different local jurisprudence customs are also necessary to capture the connection between the use of symbols and the underlying concepts to which they attach and the nuances of interpretation.

Estuaries

Our river reaches the final leg of its journey. It is warmer now and brown with the softer soils it has driven off the banks and riverbed. A diverse array of fish, bugs and plants now ride the current. The water, muddy but still fresh, will transform in its approach to the sea. The river slows as it meets its great counterforce. The now brackish waters, fresh and salty at the same time, bloom with explosions of diversity. Fish, sea creatures and microbes here in the estuary are different – resilient, adaptable. Menhaden, mullet and croakers swim about while blue crabs and penaeid shrimp spawn offshore in high salinity waters (Gunter, 1961). The rhythms of tidal waters and sudden rainfall or snowmelt can bring about dramatic change to the ecosystem’s salinity (Rich & Maier, 2015). In the large Swan Estuary in temperate southwestern Australia, “marine-stragglers” mingle with “marine estuarine-opportunists.” Catadromous fish, spending most of their lives in fresh water, head downstream, crossing paths with their opposite anadromous cousins traveling upstream, both hoping to find the spawning grounds embedded deep in their memories (Loneragan & Potter, 1990). Stenohalines, animals that cannot tolerate saline fluctuations, weakened by the sea’s rhythms, adapt and survive (Cognetti & Maltagliati, 2000).

What happens when the roaring river of doctrine meets the even more massive, seemingly unshakeable salty sea of social science methods? I suggest that, like the fish and crustaceans in estuaries, our work should adapt. In her study of U.K. legal academics, Cownie (2004) found that, for the most part, it already has. She concludes that law is “a discipline in transition,” moving from doctrine to a contextual interdisciplinary approach. Although the academics she interviewed could be divided about equally between doctrinal and socio-legal/critical scholars, both groups emphasized the need to draw from the other camp’s methods, making the dominant mode of academic law actually hybrid doctrinal/socio-contextual.

Adaptation does not have to mean abandonment. It can also mean listening, experimenting and growing. Initially, my PhD plan was to conduct a wholly inferential quantitative statistical analysis of ICC citations. Although I bristled at the comments that sought to nudge me off that path, eventually, I relented and found middle ground. After having written this article, I am glad that I compromised because now I know from experience that the empirical and the doctrinal can enrich each other. One of my PhD chapters, published as an article in the European Journal of International Law, combines quantitative and qualitative citation analysis, theoretical concepts from Third World Approaches to International Law (TWAIL) and a doctrinal interpretation of a provision in the ICC’s statute. The descriptive quantitative analysis provides the observational data that the ICC almost exclusively cites Global North domestic laws, and almost never cites Global South or African laws, even though all defendants in the cases studies are from Africa. The theoretical contribution from TWAIL provides a possible explanation for this phenomenon – that historical disregard for Africa is woven into the very fabric of international law. The doctrinal interpretation indicates that even some of the drafters of the ICC statute were concerned that the laws from the defendants’ nations would be ignored. It is in their combination that these approaches made the scholarship, I hope, compelling and persuasive. Though each possibly could have stood on its own, the doctrinal informed the empirical, the empirical made the doctrinal more urgent and the theoretical provided a potential and partial underlying explanation for both.

Each time we begin a research project, we make ourselves part of that project. Our research is not, though we may like to think otherwise, completely distinct from our own desires, biases, cognitive shortcomings, inspirations and experiences. Here, I reflect on select aspects of my experience living in the currents of methodological tension and my own adaptation to the estuary. Critical reflexivity is the method by which we look at what we are doing, how we are producing knowledge and the impact of our role and attitudes in that production (Hamati-Ataya, 2020). It serves as “an essential unsettling of beliefs, ways of acting and being, in order to notice . . . deeply engrained assumptions” (Warwick & Board, 2012, p. 149) and calls for attention to confusion, ambiguity and power relations and to how one’s research reflects, reinforces or undermines one’s values (Gabriel, 2015).

I decided to enter the world of empirical legal research because the objectivity and replicability aimed for in the natural sciences appealed to me and because I had felt a recurring twinge of dissatisfaction that when doing doctrinal research, I was either ignoring or excessively downplaying the significance of evidence that undermined my arguments. I wanted to be a more balanced researcher and I needed a way to be that person. I wanted to let the evidence lead me, rather than me leading the evidence.

Despite the “objectivity” that I sought though, reflexivity requires me to acknowledge that my positionality impacts, even in statistical empirical research, the research questions I choose to pursue, the path I take when confronted with research options and the emphasis that I place on different results. The research of methodology encourages reflection on important epistemological questions about how decisions are made in selecting data and how the researcher’s involvement impacts the research (Day, 2012). Blackham (2022, p. S104) writes: “the data that we collect reflect the issues that we value.” One of my viva voce examiners suggested that perhaps I suspected the absence of citations to African laws before I began the research, and that this hunch led me to find the data to confirm it. This comment seemed to me at the time to suggest compromised integrity. I did not respond to it but it stung. In hindsight, however, I acknowledge that he was correct. This was indeed my hunch and I had set out to find evidence to support the provocative charge. Even though I randomly selected the judgments analyzed, so that my preconceptions did not impact the evidence, the decision to search for this particular evidence was itself affected by a subjective aim. Methodologically pluralistic choices are “underpinned by epistemological, ontological, and axiological assumptions” that are impacted by their “theoretical and normative context” (Popa & Guillermin, 2017, p. 20). These choices of method, which academics use to develop theory and persuade others to accept theory, are inextricably tied to an acknowledgment that there are multiple understandings of the nature of reality and the approaches to knowledge and meaning (Dow, 2007).

At the time I am writing this, it has been about 3 years since I completed the PhD. I believe now, as I did to some extent then, that the doctrinal scholars who discouraged my empirical work were not so much animated by dislike of other methods or territorialism or love of tradition, as by uncertainty for what this mixing means for the future of the field and the future of one’s own research, by a fear of methods that can seem incomprehensible or at least foreign and by the pain and resentment that methodological attacks can cause. Khan and Mikuska (2023) insightfully observe that sometimes it is the supervisor’s insecurities that cause them to assert their power. These insecurities can be overcome. I know because I had them myself.

What I hope this article demonstrates is that a single researcher can comfortably employ cold quantitative empirical research in one study and deeply personal autoethnography in another. Our self-identities can handle diversity. These approaches – one seeking objectivity, the other merrily abandoning it – do not have to be incompatible. So long as one transparently discloses one’s methodology, its strengths and its limitations, alerting readers to potential pitfalls, there should be no reason why they cannot enrich one another. Jacobi (2023, p. 242) goes even further to argue that “not only are empirical and non-empirical analyses compatible, and often complementary and given to highly collaborative work, providing different contributions to the knowledge base, they are also fundamentally necessary to one another.”

Conclusion

While reading this article, dear reader, how did you feel about my use of river imagery and my sharing of personal experiences? I hope that these methodological choices make at least some readers uncomfortable and dissatisfied. “This is not appropriate for a serious academic journal,” you might think. It is this thought – “this is not appropriate for a law degree” – that arises in the minds of many doctrinal legal scholars when their colleagues or students depart from conventional doctrinal legal research. I intend for my methodological choices here, in other words, to prompt readers to reflect on what valid research is, what it can be and whether its expansion is beneficial, insightful and justified.

Not all law schools and not all social science faculties experience heightened methodological tension, and those that do experience it to different degrees. This article may interest and be of value nonetheless to all legal scholars, regardless of what they think of their methodological work environment, because there is often more tension under the surface than is evident to those in positions of power. For social scientists seeking to work with legal scholars, understanding the methodological foundations of law can ease the tension and make collaborations more fruitful. Yet it is important even for researchers whose work does not touch upon law to understand how methodological antagonisms impact students and early-career researchers more acutely so that they can identify and prevent unnecessary hardship.

The passage of time has softened my own distress and frustration over methodological differences. I can now feel some gratitude to those who questioned my methods. They made me study even harder. I now can appreciate those who refused to allow me to ignore doctrinal research. They made me find the doctrinal strengths of my arguments. Throughout the 7 years that it took me to complete the thesis, the nudges, pressures, discouragement, warnings and advice had their intended effect: the thesis became a hybrid of quantitative, qualitative and doctrinal methodologies. It was, in the end, richer. For that, I am also grateful. And though I think I failed to persuade any of my former colleagues that they should give quantitative research a try and I may get into hot water once they read this article, I feel now, looking back, less of an island and more part of the flow.