Fabien TerpanLecturer in public law at Sciences Po Grenoble and the CESICE laboratory, @TerpanFabien
How would you define objectivity in the social sciences?
Broadly speaking, there are two main approaches to the discipline of law, and public law in particular. Either law is a science whose object of study is the law, and only the law; or it is a science that seeks to analyze the law in relation to the society that surrounds it.
For advocates of the first approach, there is a logic to law that must be analyzed independently of the social reality that surrounds it. This is what legal positivism advocates, whose aim is to describe as accurately as possible the state of the law in a given society, to distinguish between what is "legal" and what is not. Objectivity is then achieved through the rigorous, methodical identification of existing law. At first glance, this does not seem to pose any major problems, as it is primarily a descriptive undertaking. In reality, the quest for objectivity is more complex than it seems.
When dealing with a "macro" subject, we come up against the problem of the quantity of texts that need to be analyzed to arrive at the most accurate description possible. In such cases, regression analysis is not possible, as it would be in quantitative research in political science, for example. It may be tempting to solve this problem by relying on examples rather than systematic analysis. If it is not possible to cover all the rulings handed down by the Court of Justice of the European Union (CJEU), we will settle for using a small number of landmark rulings. This makes sense when the aim is to identify the "major judgments", those that have changed the state of the law. But we often run the risk of drawing general conclusions (e.g.: the CJEU is a court that favors the market over social rights) based on a few cases that point in this direction (the famous Viking and Laval rulings of 2007), without being certain that the body of case law as a whole is consistent with these few cases. To satisfy the requirement for objectivity, we must, in my opinion, give priority to the systematic analysis of sources, and avoid providing pseudo-proof based on simple examples.
When dealing with a more "micro" subject, other problems remain. The main difficulty lies in the fact that the law is open to interpretation. For example, how should we interpret the Second Amendment to the US Constitution, which enshrines the right of the people to keep and bear arms? Does it mean that the people, collectively, have the right to defend the State against possible attacks, or that each citizen, individually, can use arms to defend himself against other citizens? Ultimately, the interpretation can be provided by the judge in the context of the disputes brought before him or her. In 2008, for example, the US Supreme Court ruled that the Second Amendment contains an individual right to bear arms. At this stage, positivist doctrine will seek to verify the validity of the reasoning used by the judge to deliver his interpretation. In our example, it will ask: did the Supreme Court interpret the Second Amendment in a way that is consistent with the logic of the law? In my view, this is an untenable claim to objectivity on the part of the "positivist" jurist. It is not possible to assert, in the name of objectivity, that "the judge made a mistake", because he applied "bad" reasoning. In this, I agree with the legal realist view that interpretation is above all a question of will: there is not just one possible interpretation of the law (the one that legal logic would indicate), but several, from which the judge makes a (to some extent "political") choice.
A second approach within the legal discipline, the one to which I belong, analyzes law by considering the way it interacts with society. Identifying existing law remains an important objective, but it takes its place within a wider set of considerations and creates bridges with the other social sciences. Taking these considerations into account sometimes results in analyses that do not seek objectivity but are, on the contrary, normative in nature (the jurist gives his or her personal opinion on the legal norm, its content, its supposed impact on society) or prescriptive (the jurist gives his or her personal opinion on what the law should be, how it should evolve).
However, it is possible - and in my view desirable - to deal with the relationship between law and society without abandoning objectivity, and by avoiding value judgments as far as possible. The aim is to understand where the law comes from, how it is generated and how it evolves, to check whether it is applied, and to analyze what actors do with the law, without necessarily seeking to approve or disapprove of it. As in other social sciences, the quest for objectivity involves the administration of evidence. It presupposes the establishment of facts based on the diversity and systematic analysis of sources. It also involves - although this is very rare in law - the search for causality, the development of hypotheses linking several variables, establishing the link between cause and effect.
Is researcher neutrality possible and desirable?
Total neutrality is impossible, but it remains desirable to strive for the greatest possible neutrality. We must, however, distinguish between the choice of research object and the way it is treated. The choice of subject can be linked to the values one defends. Many researchers are interested in human rights and discrimination, because they believe that these rights should be defended and discrimination combated. As long as they treat these issues in an objective, non-activist way (see answer to the first question), this poses no problem. This treatment will be all the more objective if scientific methods are used (see answer to third question). The fact that a researcher intends to demonstrate a particular point because it serves his or her opinions is not in itself problematic. It only becomes so if the researcher refuses to allow the results of his research to contradict his opinions.
Beyond this fundamental distinction between choice and treatment, several difficulties can arise. Firstly, the choice of a research subject by researchers is sometimes a source of prejudice, both in the scientific community and in the public arena. For example, researchers working on security and defense issues are sometimes perceived as warmongers who pay little attention to human rights. Similarly, those working on discrimination based on religious affiliation (real or assumed) are sometimes presented as complacent towards religions, even when they take violent or discriminatory forms. In return, those who focus on discrimination based on religion are sometimes seen as supporting discrimination based on religion. What makes it possible to counter these prejudices is the objective and methodical treatment of the research subject, the absence of normative statements and the rejection of value judgements.
Another difficulty may arise from the orientation of research in a given society (France, Europe, the West...). Certain subjects may receive extensive treatment, while others are neglected, which may suggest that the scientific community is biased, that it is more inclined towards one type of theme than another. By accepting and defending pluralism - within the limits of the law - we can avoid this pitfall.
Finally, the ambiguity that can result from the researcher's related activities should be emphasized: public speaking linked to a personal commitment; responding to media requests.... These activities are likely to cast doubt on the neutrality of researchers' work. If we claim to be objective and neutral in the treatment of our research, we need to keep research and related activities separate. This is not an easy task. Indeed, one may wish to use the results of research to support a particular opinion. But when you're working in both fields - research and community involvement - you have to accept the doubts this raises in the minds of the public, who may legitimately wonder whether such research is objective or, above all, militant.
At the very least, it's always a good idea to clarify which register you're in: normative or analytical. When I answer an interview, I generally try to avoid questions of a normative nature (what do you think of...? Is it right or wrong...?), which makes me a "bad customer" for the media. When I'm teaching, I try to avoid value judgments as much as possible, and in the (rare) cases where I have to deliver an opinion, often at the invitation of a student, I make it clear that it's an opinion and that everyone is free to have their own.
How important are methods to you as a researcher?
Methodological rigor is essential. The best guarantee of objectivity is to indicate precisely how a result was arrived at. By explaining the method used, we open ourselves up to criticism from other researchers, who, by refining or modifying the method, may arrive at more accurate results. Such criticism is indispensable to science.
Earlier, I touched on some of the methodological difficulties faced by jurists, distinguishing between the "macro" and "micro" levels, and discussing the interpretation of law. I also mentioned the need to avoid "demonstration" by example, and to favour systematic analysis of sources. I'd also like to stress an equally crucial point, in law and in other disciplines: the definition and use of concepts.
Notions are tools for analysis, not intangible realities. They serve to establish facts, but should not be confused with the facts themselves. Take, for example, the notion of constitution. Some jurists will argue that there can be no European constitution, because a constitution can only exist within the framework of the nation state. This is absolutely right ... if we consider that a constitution can only exist within the framework of a nation state! If we disregard this criterion, and adopt others (the superior charter of an organization, distributing powers between institutions, establishing a list of superior principles...), then we can perfectly well envisage the existence of constitutions at the level of the European Union or other international organizations.
Notions are not, in themselves, scientific or non-scientific. Any notion can find a place in a scientific approach, provided it is clearly defined and used in a logic of objective fact-finding. Thus, for the debate on the democratic or non-democratic nature of the European Union to be "scientific", we must at the very least agree on what we mean by democracy, determine the criteria of democracy, and find the indicators that make it possible to establish whether or not the European Union satisfies such and such a criterion. We will then arrive at the fairest possible result according to the chosen criteria; bearing in mind that if the criteria change, the result is also likely to change. A jurist choosing formal criteria (election by universal suffrage, separation of powers, protection of fundamental rights, etc.) will find that a European democracy exists, whereas another, insisting on informal criteria (political life on a European scale, electoral participation, etc.), will more easily show its limits.
Could you present an example of research, ideally from your own work, to illustrate the issues and tensions surrounding objectivity and neutrality in the social sciences?
In our work on the Court of Justice of the European Union, Sabine Saurugger and I use the notion of activism. This notion is not without its problems, as it is sometimes used by authors who give it a negative connotation. The Court's activism is then seen as reflecting a kind of government of the judges, a situation in which the judges would go beyond their function of applying and interpreting the law to take the place of so-called political power (government, parliament). However, our aim is not to denounce the Court's supposedly excessive power, but to analyze its place in the EU's political system, leaving it to the reader to decide whether this place is insufficient, normal or excessive. To this end, we give a definition of activism based on two main elements (the type of interpretation delivered, and the gap between this interpretation and the position of other actors in the European system). This definition is neither an endorsement nor a disavowal of the Court's position; it is merely an analytical tool.
A critical legal theorist would say that the mere fact of not seeking to criticize the Court is a political stance, at least implicit, in favor of the Court. This is not my view. For me, the quest for objectivity involves finding one's way between two opposing positions. The first is to describe the Court's judgments without ever questioning them, without putting them into perspective. The second, on the contrary, involves constant criticism of the Court on the basis of assumptions that are often normative or even ideological. Between these two positions, there is room for analyses that describe the Court's rulings as objectively as possible, that determine whether or not they are "activist", that seek to understand where they come from, whether they are accepted or contested, and what explains why they are accepted or contested. In short, analyses that do not present the Court's positions as a kind of legal truth that cannot be questioned, without apprehending them in the mode of normative criticism.