Boundary work in law: Reflections from a refugee scholar

Although the topic of your project seems to be well-chosen and engaging, I must admit that I became somewhat concerned when I heard that you plan on diverging from a traditional doctrinal analysis. After all, at the end of the day, you need to stay within the realm of legal science.

This comment was recently made to me after a presentation I held of my PhD project. As someone doing a PhD thesis on the issue of how sexual minorities are constructed within refugee law, my colleagues at the Law Faculty have often reassured me that my research is both interesting and important. But there is always a “but” – and this “but” tends to turn up when it becomes clear that I am not planning on using what in Norwegian is usually simply referred to as a “regular” or “normal” legal method.  

Underpinning the concern about going outside the boundaries of proper legal science is a set of questions regarding the nature of legal scholarship. Namely, “what constitute a legal analysis?”, “what is the purpose of legal science?” and, perhaps equally important, “what constitutes good or useful legal research?” In this blog post, I will attempt to consider some of these issues.  

‘Traditional’ doctrinal legal analysis 

By far the most common way of researching law, both at a national and an international level, is doctrinal (also known in civil law jurisdictions as ‘dogmatic’) legal research. At the same time, the precise content of doctrinal method is rarely explicitly discussed by legal scholars, and while it has sometimes been described as being “so implicit and so tacit that many working within the legal paradigm considers it unnecessary to verbalise the process”, doctrinal research is nevertheless far for a unified concept (Hutchinson & Duncan 2012: 100). Within the field of international law alone, there are a multitude of opinions on what a doctrinal method consists of. As such, the precise content of doctrinal legal method is to a certain extent flexible and open to different understandings and approaches.  

Keeping this in mind, it can generally be said that a central focus of doctrinal research is to systematize, interpret and define the content of current positive law (de lege lata) and/or to offer suggestions on how the content of positive law should be changed or improved (de lege ferenda). An aspiration of legal doctrinal research is thus to create coherence and order among rules and principles within the legal system (Svensson 2007: 14). In line with this, doctrinal research generally adopts what can be called an internal perspective on law – meaning that its own sources are used to establish the content of current positive law, as well as for criticism or suggestions de lege ferenda.   

Critical approaches to law  

Over time, the position of doctrinal legal analysis has been challenged by a number of different approaches and methods to researching law, including Critical Legal Studies (CLS), Third World Approaches to Law (TWAIL), feminist legal studies and decolonial perspectives on law. A commonality of these approaches is that they in different ways focus on revealing, analysing and challenging how seemingly neutral legal provisions or regulations serve to reinforce patriarchal, colonial or otherwise unjust power structures in society. 

Consequently, according to these critical approaches the boundaries of legal scholarship are understood to be wider than according to the ‘traditional’ doctrinal position (Svensson 2007: 33). The role of legal scholars is seen as being different from that of legal practitioners – and while practitioners use the legal system within its own boundaries, legal scholars are not considered to be bound by these limits.  

A central difference between ‘traditional’ doctrinal legal analysis and critical approaches to law relates therefore to the purpose of legal science. This in turn affects the methodological choices of the research. While doctrinal analysis usually aims at creating coherence and consistency in order to improve specific legal regulations or different parts of the legal system, critical scholars are to a greater extent divided on what the purpose of legal scholarship should be. Some scholars aim to create new forms of coherence, for example by systematizing law according to women’s needs and perspectives, as is done in some approaches to women’s law (Butler 1990: 2). Others might be skeptical of the aim of achieving coherence and rather work towards other improvements of the legal system. All of these approaches, to some extent, attempt to provide an answer to how the content of positive law can be improved and in this sense the purpose remains de lege ferenda argumentation. 

Law’s role in constructing the categories and concepts it regulates 

Other critical scholars reject this goal altogether, such as post-structuralist or decolonial approaches to law, instead taking the position that legal scholarship should focus on how the law contributes to constructing the categories and concepts that are used in legal regulations. In other words, law is understood as being productive rather than merely descriptive, in the sense that legal reasoning takes part in creating what it what it appears to merely describe – for example, the concept of the sexual minority refugee..  

A basic premise for this type of analysis is that our understanding of the world is shaped through language.  As such, language helps us create representations of the world that are never mere reflections of a pre-existing and objective reality, but rather contributes to the construction of reality (Foucault 1972). This does not mean that reality does not exist, but that the way we understand the world is only accessible to us through socially produced categories. Thus, legal reasoning is involved in constructing seemingly factual concepts. Consequently, concepts such as sex or gender – or the sexual minority refugee – are not simply categories that exist independently of law but concepts that are constructed within legal reasoning.  

An implication of this type of critical analysis is that it may be necessary to postpone, or even put aside, the question of how specific legal regulations should be changed. Instead, the focus is on understanding and deconstructing the taken-for-granted notions that law itself is based on.   

While such a purpose may at first glance to be seem less useful than research that offers concrete suggestions on how positive law should be improved, it allows us to ask different questions than what a “traditional” doctrinal legal analysis does. Such questions may include: what forms of identities are recognised as being worthy of protection within a legal regime, and what identities are not – and more importantly, why? This type of research may allow for a deeper understanding of how law functions which in turn may be necessary in order to make systemic changes to the legal system in the long run.