How to Study Courts? a Proposal for a Critical Trans-Disciplinary Approach

Despite the increasingly visible expansion of court power critical, empirical-based socio-legal research on judicial institutions is still underdeveloped. While the theoretical conceptualization of law from a sociological perspective has attracted a number of debates in the social sciences, the courts and particularly the judiciary have been largely ignored. We argue that a critical trans-disciplinary approach for the study of courts is much needed to fill the methodological gap in socio-legal studies. Such an approach is based on the recognition that courts have a unique dynamic that cannot be explained as simply another part of state bureaucracy because those dynamics are heavily shaped by the autonomy of the law. In this context, this article reflects upon the value of qualitative methods for studying courts. Drawing upon the experiences of the authors, the article reflects upon the difficulties of collecting and analysing data, the categorization of legal and non-legal elements of the judicial decision-making process, and the agency of legal actors. In this way, it seeks to address some of the analytical challenges judicial decision-making. We begin with an overview of four key perspectives within sociolegal studies, reflecting upon the binary elements of legal/non-legal and pointing out the analytical challenges the researcher faces when differentiating between these elements in the actual judicial practices and discourses. This allows us to then consider the value of this binary in the judicial decision-making process. We then discuss the importance of knowing the ‘language’ of the law in order to identify and understand non-legal elements that influence a judicial decision. Finally, the article addresses the impact of this type of qualitative research on legal discourses. It suggests that the researcher has an important role in being critical of the hegemonic values that shape the legal field.