David Nelken
I was glad to accept this invitation to respond to this intriguing collection of studies about the question of “positionality” in socio-legal research. But I make no claim to my story being half as interesting as those included in this volume! Asked to comment on the fascinating chapter by Swethaa Ballakrishnen, I at first demurred. As a straight, white, European male, what I have to say about “vulnerability” has mainly to do with my leaving the UK in the late 1980s to work in Italy (though moved more by love for my future wife than the need for a job) and the challenges it presented.
In their chapter, Ballakrishnen seeks to explain why they need to bring their identity into their research, not least so as to avoid wrong assumptions being imposed on them. They tell us that there is a direct connection to their research agenda because they focus on marginal actors in the legal system and the extent to which relative exclusion persists in the face of protestations to the contrary. Moreover, positionality helps them recognise the spurious neutrality that inevitably reflects and reproduces partiality.
Ballakrishnen also argues that being explicit about their identity and starting points will help the reader better understand “where they are coming from.” They then illustrate the relevance of these considerations to their fieldwork and work in this field. They are especially conscious of the tension between marginality, in terms of coming from the Global South, with a complex gender identity, alongside notable privileges of birth and education, and now a position in a leading US academic institution. They go on to explore how these identities could both help or hinder fieldwork depending on the settings and how they served as a stimulus for important theoretical insights.
Even with all the differences in our situation, I do recognise what Ballakrishnen means when they write that “my identity is also an interactional and living organism that shape-shifts with environment, exchange and reception” (p 141). And we do both share a concern with what can be (safely) spoken from the position of the comparativist. My experience represents a limited starting point for exploring all that could be said about “positionality.” But it is also fair to say that much of the widely cited literature in this field, especially that authored by geographers and anthropologists, does focus, in various ways, on finding one’s place in the world (see, e.g., here and here). I will therefore offer a few glimpses of how feeling “out of place” in the process of changing places relates to the possibilities and difficulties of making progress in researching and writing about comparative topics.
Reflexivity in Comparative Studies
Insofar as my interest lies in methodology, I take it for granted that the topic of positionality has a special connection with the challenges of qualitative research. I very much endorse Ballakrishnen’s suggestion that “what makes findings strong and convincing (rather than biased and lacking in veracity because of its personal construction) is their grounding in their circumscriptions” (p 155). They add, and I agree, that “this is especially true when introspecting institutions that have historically been seen as neutral or normative, such as the law. Distance from normativity – however constructed – can have important implications for perspective and writing, especially about structures with an institutional sanction that are usually taken for granted as “good” or “humane”” (p 151). In sum, Burke’s claim that “every way of seeing is also a way of not seeing” should be taken to apply not only to persons but also to academic disciplines.
All this is linked of course to the need for reflexivity about our starting points and pre-understandings. It is important to take care that this does not become self-defeating and lead to “infinite regress” as we try to place ourselves both inside and outside the frame of what we choose to study (see “Reflexive Criminology?” in David Nelken (ed), The Futures of Criminology (Sage 1994)). On the other hand, if we adopt a social constructionist approach—the claim that social reality is a matter of human definition and interpretation—it becomes difficult to deny that our accounts of others’ descriptions of the world are themselves also social constructions (see e.g., here and here).
Whatever the answers to these larger questions, undertaking comparative research soon makes it clear that there is “no view from nowhere.” Are Italian mothers especially affectionate towards their children? “Of course they are,” says someone coming from England. “Not so sure,” says someone from Morocco (see here). What do people in each of these countries—and the observer—mean when they talk of affection? What if some mothers think children need to be taught independence early? Can there ever be too much affection? Much of my research has pursued an agenda concerned with the applicability of values cross-culturally. Can prosecutors ever be “too independent”? Can criminal justice ever be “too lenient”—arguably, a less obvious and more interesting question than the repeatedly denouncing places with “too much” punitiveness?
Positionality plays a key role in all fieldwork, but this will vary with levels of commitment to the place being studied. Choosing to live in another country as a life choice goes some way beyond ethnography and many of the more interesting lessons come less from observing research sites than from what happens in the rest of one’s life. Changing places can also challenge prior understandings of the relevance of positionality.
Soon after moving to Italy, I had a late-night conversation during a socio-legal meeting in Spain, with my newly acquired (and still good) friend, Carlo, a colleague from Sicily. “But Carlo,” I objected, “why am I expected in Italy to sign up to one (academic) group which has half of the truth and then fight the others who have the other half? “Oh David,” he replied, “I don't know whether it is because you are Jewish, or because you are English, but you haven’t understood anything!” I could of course appreciate “sociologically” why academic groupings with competing political ideologies would want to joust in this way, but I did not want to understand, in the sense of being unwilling to deliberately mould my writing according to group affiliation.
After many years in Italy, I became less certain about academic neutrality and more willing to recognise that anything I wrote would be likely to be applauded or rejected as much as for how it was seen to contribute to one or other side of an intellectual-political debate as to any truths it contained. Does this mean I went “native”, or was it that now I could see that even in the UK, affiliation often mattered more than was openly acknowledged? What remains perplexing is why some of those who do comparative research are willing to rely on what their interviewees tell them without carefully examining their personal, political, and academic affiliations.
Comparison and Allegiance
Changing my views about positionality did not come easily. In particular, when I was selected by other professors to sit on national selection committees, I continued to struggle with the way allegiances explicitly affected job appointments in Italy's university system. It was an open secret that the so-called “concurso”, or public competition, often operated a system of academic co-option that was unrecognised by the formal legal provisions which supposedly regulated its proceedings. In practice, this meant that appointments were often based less on a comparative evaluation of the different publications submitted by the candidates and more on hard negotiation amongst the co-opting groups represented on the committee about whose turn it was to place their people. A candidate’s merits, beyond their loyalty to their own group, were sometimes otiose. More commonly, it was in itself insufficient.
But what was I supposed to do? Follow the advice of Saint Ambrose that, “When in Rome do as the Romans do”? In the short term, attempting to act according to supposedly more meritocratic criteria would only lead to more unpredictability in the system and would not guarantee any overall improvement. Or could resistance to the system be justified in the name of the many voices even in Italy who objected to the de facto reigning method of appointment by co-option? Yet some at least of these critics also espoused questionable neo-liberal ideas of efficiency in education policy-making and had in any case failed to work out the full implications of their desired reforms.
Comparative Vulnerability
As Ballakrishnen notes, the place we occupy in doing research—as in life—is often assigned more by others than ourselves. This can be both helpful and unhelpful. Whilst doing my PhD, which involved researching at a large private landlord company with a poor reputation, it came out that, before working there temporarily, I had just been studying for a Masters in Criminology. “Oh,” said one of the members of their legal department, “you would have found a lot that is useful to you here.” “Oh dear, I've been rumbled,” I thought, but luckily, I kept my mouth shut and waited for what would come next. The lawyer then continued: “Well our tenants are really terrible!” (see here). Whether it is right to take advantage of such misconceptions—which can often be key to gaining and keeping access to difficult research sites—is a genuine ethical dilemma. However, current university protocols which insist on full disclosure may oversimplify what is at stake.
The view of the beholder, however, may not always be benign. Sometime later in my academic career, I gave a talk at the annual conference of the campaigning organisation, the Howard League, about the then-fashionable idea of encouraging community involvement in criminal justice. After querying what was meant by “community”, I distinguished what I called control of crime by the community, control of crime in the community, and control for the community, and examined the strengths and weakness of each of these moves. For me, this analysis was just a modest effort to warn others about the potential downsides of the latest silver bullet designed to resolve the quandaries of criminal justice. But some magistrates in the audience heard it as a political intervention and remarked to me that they would see me on “the other side of the barricades”! Who we are, then, depends at least as much on where other people are standing, as what we think we are standing for. As we place others, so they place us.
The difficulty of resisting others’ definitions can be greater when we find ourselves in foreign surroundings. As an unknown quantity, whose side we are on matters all the more. A piece I wrote soon after moving to Italy concerned the judges’ role in fighting corruption. I tried to explain what had made the legal attack on political corruption so successful in the short term but also warned of the limits of relying on judicial intervention alone as a way of reforming the political system. Some commentators identified my contribution as emanating from a left-wing caucus but this existed only in their imagination. On the other hand, on the basis of the same chapter, I was invited to participate in a broadcast on national radio. Here the assumption was made that I sympathised with the right-wing claim that “politicised” judges had deliberately set out to bring down the government.
The strong insistence that research should be judged by its origins rather than its contents characterised the reception of some of the work I carried out as a member of the scientific committee, Cità sicure, created by the Emilia Romagna regional government. Together with a colleague who was an expert on organized crime I helped direct a large-scale research project, sponsored by the region and a business association, set up to investigate the allegation that immigrant beach sellers on the Italian riviera were being manoeuvred by the Mafia. When our investigation did not confirm this, our findings were rejected by the business association, and our research stigmatised by them as a “vu cumpra” project—a racist term deliberately echoing the supposed invitation to purchase their goods issued by such beach pedlars (see Raimondo Catanzaro and David Nelken, “Come si costruisce un problema sociale” in G. Sciortino & A. Colombo (eds), Stranieri in Italia: Un’immigrazione Normale (Il Mulino 2003)).
Conclusion: Between Comparison and Commensuration
However awkward it may sometimes feel to be “out of place”, its redeeming value lies in reminding us that there is no “view from nowhere.” For the same reason, it induces scepticism towards exercises that presuppose the possibility of a “view from everywhere.” Institutions and projects that assume such a viewpoint often end up using comparison less as a strategy of explanation and more as a form of social control imposing the values of some places on others. This is especially problematic when the comparison is linked to the compilation of hierarchical social indicators (see, e.g., here, here, and here). In these cases, comparison turns into “commensuration” as people and places are judged according to a supposedly common standard, even if it is one that those being assessed may not all share, might not actually want to adopt, and certainly do not all have an equal chance of achieving. Our own sense of vulnerability can—and should—serve as a prophylactic against taking advantage of the vulnerabilities of others.
David Nelken is Professor of Comparative and Transnational Law and past Head of Research and Vice-Dean at the Dickson Poon Law School at King’s College, London, UK. Widely published in the areas of comparative criminology and sociology of law, he received a Distinguished Scholar Award from the American Sociological Association in 1985, the 'Sellin-Glueck' international career award of the American Society of Criminology in 2009, the bi-annual senior 'Podgorecki' career prize from the International Sociological Association (RCSL) in 2011, and the (USA) Law and Society Association International Scholar Award in 2013. He is a Fellow of the British Academy and the Academy of Social Sciences.
Feature Image: Durba Sen, Shimmering Lights.
This is part of a book round-table on Out of Place: Fieldwork and Positionality in Law and Society (CUP 2024). Read the other posts here.