Law and Empirical Research Methods
By Marie Elske Gispen, University of Groningen | m.e.c.gispen@rug.nl
Empirical research methods are increasingly used in international legal studies and the importance of doing so is being more and more acknowledged. This development, however, may come with difficulties at both institutional and practical levels.
Institutional challenges to using empirical research methods in legal research
Institutional challenges include the fact that law schools traditionally educate their students in the use of legal methods, leaving future legal scholars often without the necessary toolkit to employ empirical methods (provided that they did not receive any other education in this field).
Moreover, in the medical and social sciences, any study involving human participants requires approval of an ethics review board. This is done to ensure that the study group or researcher sets out a transparent and integrous research plan with due respect for data protection and informed consent of all participants. Health related studies should in principle obtain such approval by a medical ethics review board. In the Netherlands, however, many law schools traditionally did not have such ethics review boards – there simply has not been any need. While these boards have been or are presently being established, the inability to obtain approval has raised and may still raise difficulties.To illustrate this point, one could consider the example of field research that is being conducted in a foreign country. At times governments require researchers to apply for a permit, which may include the approval by an ethics review board of the researcher’s home institution. If ethics approval is impossible to obtain due to the lack of an ethics review board, the researcher may not be able to lawfully carry out data collection in the country of choice. This type of approval is required, for example, for research conducted in Uganda. Perhaps even more disheartening may be the scenario where data was collected and analyzed but the authors find themselves unable to publish their research. As many hybrid or social sciences journals require that an ethics review board has approved the research protocol.While these institutional challenges are acute for those wishing to include human participants in their legal study at this very moment, it is hoped that at least the difficulty in obtaining ethics approval is overcome once ethics review boards are operational.
Practical challenges
Practical challenges, however, are likely to persist. Education in empirical research methods is lacking in curricula of law schools and is not always readily available to academic staff. I am not arguing that empirical research methods should be a mandatory course in any law program or part of the professional training of academic staff. Such training should, however, be made available to students and staff who wish to include empirical methods in their research projects. For it is one thing to follow the formal procedures of obtaining ethics approval prior to data collection, but an entirely different thing to know how to act upon your protocol in an integrous manner when confronted with a wide variety of issues in practice.
Let us assume one is carrying out a qualitative case study by conducting interviews and the medical ethics review board of the home institution reviewed the research protocol and stated that no further review was necessary. The protocol establishes that written informed consent will be secured and that the findings will be dealt with in a strictly anonymous manner.
One could imagine a scenario where the researcher and the respondent have been discussing the set up of an interview for 30 minutes. In the researcher’s opinion this has already resulted in a substantive exchange the researcher would like to have with the respondent as part of the study. Could one kindly yet firmly ask the respondent to sign the informed consent form at this point in time? Strictly speaking this information cannot be used, however, because it falls outside of the interview and is not recorded. This touches upon the core of consent and its non-coercive nature. When conducting research, it may at times be challenging to find suitable respondents matching the inclusion criteria of the study. People have limited time and one aims to collect as much data as possible. The use of written informed consent may be questioned as such. That, however, is a separate discussion. The point here is that if the research protocol states that informed consent forms will be utilized one should follow that procedure.
A second possible scenario touches upon the incentive to participate in a study or its follow-up. The protocol states that participation is free, as the researcher may not want to provide a financial incentive to take part in the study as, for instance, the researcher would travel to participants for the interviews. Once data collection is completed a follow-up dissemination event is being organized. It is common practice in some countries to pay a lump sum for travel costs to and from the event. What if this lump sum seems higher than the price of public transport or fuel costs and thus perhaps creates a financial incentive the researcher attempted to avoid? Should the advice of one’s ‘gatekeeper’ be followed, i.e. the host institution vital in helping to carry out the study in a culturally appropriate manner? Or is it preferable to strictly stick to the standards that have been approved? Even more challenging is the scenario where one is confronted with such decision-making en plein publique. The choice will often inevitably boil down to offending the research participants or potentially breaching the protocol.
Where to go from here?
There are no clear-cut answers to these questions as – much more than described here – the actual interplay of these instances is context dependent. The point is not to simply determine in the abstract what is right or wrong but to highlight the importance of reflecting on these issues. One may question the severity of these examples and perhaps they are futile to experienced researchers. However, legal scholars are often inexperienced in the practice of qualitative data collection and should thus be aware of the fact that practice does not always fit one’s protocol. One may wonder whether or not there are circumstances that allow for a deviation from protocol. How can a researcher make sure that acquiring informed consent in a manner set out in the research protocol does not result in a scary amount of paperwork that makes respondents hesitant to speak? Should one entirely abandon the study if a mistake has been made in this respect? I don’t think so. Instead, it is hoped that these ‘ethics in practice’ examples, show the importance of integrity and transparency when conducting research. In other words, every researcher has to be aware that informed consent is actually duly acquired and the personal data of respondents respected and protected. Even more so because ethics review boards only perform an ex ante and not an ex post assessment of one’s protocol and the way it was used. In fact, researchers who decide to leave their comfort zone should have access to training and education to enable them to respect the ‘rules of the game’ of, in this case, the social sciences.
Marie Elske Gispen, LL.M., PhD. is a postdoctoral researcher at the Department of International Law of the University of Groningen. This blog post originated from talks given at the University of Groningen about her experience in, and observations on, including empirical methods into legal studies.