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Does Qualitative Data Gathering Enlighten a Legal Pluralist
Study of Law?
Abstract
Amy Jackson
For decades, scholars have posed the question ‘what is law?’ Legal pluralists
provide a variety of definitions and contexts for the study of law as a multi-sited
social phenomenon. Kleinhans and Macdonald’s radical critique of legal pluralism
(what they call ‘critical legal pluralism’) shifts analytical focus from the traditional
legal pluralist acknowledgment of the operation, interaction and conflicts between
multiple homogenous normative orders, to the heterogeneous imaginations and
creative capacities of legal subjects. What is law, in a particular situation is found
by questioning the narrative account of legal subjects.
This chapter assesses the methodology used in an empirical study undertaken
by the author. Theoretically, the study draws on Kleinhans and Macdonald’s
approach to law. Practically, the study examines whether Muslim women who live
in Britain experience the practice of veiling as having normative quality. The
practice of veiling refers to the various ways Muslim women continuously conceal
their heads, bodies, and faces by wearing a hijab, a jilbab, a niqab, or a burqa in
public. During four focus group discussions, a sample of Muslim women living in
Britain (between 18 to 36 years of age and from a range of socio-economic
backgrounds) was asked a variety of questions relating to their experience of the
practice of veiling and the ideas of identity, normativity, autonomy, and rights. This
chapter considers the question: does qualitative data gathering enlighten a legal
pluralist study of law?
Key words: Legal Pluralism; qualitative data gathering; the practice of veiling.
*****
Qualitative methods enable researcher’s to interpret of the views and
experiences of study participants. 1 There is difficulty in creating a generalizable
definition of legal pluralism as legal pluralists provide a variety of definitions,
contexts and methods for the study of law as a multi-sited social phenomenon. 2
This chapter considers the question: does qualitative data gathering enlighten a
legal pluralist study of law?
In order to provide an answer, I concentrate on one situation of Muslim legal
pluralism. In Britain, hypotheses of Muslim legal pluralism have been the subject
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2 Amy Jackson
of much discussion, 3 and controversy. 4 The practice of veiling is particularly
controversial. 5 For example, public bodies and places of employment have
prohibited Muslim women from wearing veils. 6 Previous studies conducted on the
practice of veiling in Britain capture a variety of meanings and reasons Muslim
women follow the practice. 7 One question, not previously researched is: do Muslim
women who live in Britain view the practice of veiling as law?
I have conducted an empirical study to investigate the question. 8 The study was
influenced by Martha-Marie Kleinhans and Roderick Macdonald’s pluralistic
approach to law and society (what they call ‘critical legal pluralism’). 9 This chapter
assesses the methodology of my study. It is structured in two parts. The first part
asks, theoretically, why should legal pluralists use qualitative data gathering
methods in studies of law and society? The second part of the chapter explores how
legal pluralists could use qualitative methods in studies on the relationship between
law and society.
1. Why Should Legal Pluralists use Qualitative Data Gathering Methods?
As stated at the outset of the chapter, legal pluralists provide a variety of
definitions, contexts and methods for the study of law as a multi-sited social
phenomenon. This part of the chapter considers why legal pluralists should use
qualitative data gathering methods.
Kleinhans and Macdonald argue that law is created in the human imagination.
They argue that traditional studies of legal pluralism essentialise the experiences of
people subject to the rules of normative orders (legal subjects). 10 For legal
pluralists, such as John Griffiths, the ontology of law is the self-regulation of
normative orders. 11 A school is a normative order because it consists of the
decision-making and law-enforcing processes comparable to those of the modern
political state. The question legal pluralists, such as Griffiths, tend to pose is which
normative order: ‘has jurisdiction over a given legal subject in a given situation at a
given time?’ 12 This is the type of question that the Archbishop of Canterbury poses
to determine that shari’a councils to have jurisdiction over British Muslims, as
well as English law, related to matters of family law. 13 By investigating this
question legal pluralists perpetuate an institutional notion of law.
In order to ascertain to which normative order(s) legal subjects feel that they
belong to, a complementary question is asked: ‘[w]ithin which [normative] order
does the particular legal subject perceive himself or herself to be acting?’ 14 Samia
Bano, for example, captures the narrative accounts of British Pakistani Muslim
women to document what they make of the claims of shari’a councils (in relation
to divorce proceedings) in their own lives and her research highlights the
heterogeneity of British Muslim identity. 15 Bano argues that:
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Does Qualitative Data Gathering Enlighten a Legal Pluralist Study of Law? 3
there is a sense of belonging to a Muslim community,
which the women in this study expressed. Yet these
descriptions of belonging and community were
articulated in different ways. Some women had been
marginalised, others occupied a closer position to the
acceptable dictates of community expectations and
such discussions must therefore recognise the complex
lived reality that Muslim identity entails. 16
Bano selected her study participants because they belong to a clearly defined
community. Kleinhans and Macdonald affirm that even by adding the latter
question ‘[l]egal subjects are…subsumed under one (or even several)
homogeneous labels [such as, ‘Muslim’] instead of being allowed to persist as
heterogeneous, multiple creatures’. 17 Discussion of a legal subject’s ‘being’ is
required. A person’s subjective beliefs do not need to be upheld by objective
standards in order to legitimate his or her values because law is ‘meaning and not
machinery’. 18 Kleinhans and Macdonald’s approach is inspired by hermeneutic and
narrative analysis. 19 Legal subjects are best placed to decide what law is for them in
a particular social situation, as a result law is autobiographical. In subsequent
work, Macdonald provides an autobiographical account of his experiences of
Canadian Public Law. 20
Kleinhans and Macdonald contend that any attempt to capture what law is will
fail, because law has no independent existence outside the imagination. In order to
overcome the critique that legal pluralists essentialise people’s experiences of
normative orders and cultural communities, the questions they should be posing
are: how are legal subjects constructed by law and what laws do legal subjects
construct? By using qualitative methods of data gathering legal pluralists can
capture a subjective meaning of law(s).
2. How Could Legal Pluralists use Qualitative Data Gathering Methods?
The previous part of the chapter concluded that legal pluralists should use
qualitative data gathering methods in order to capture how legal subjects construct
and are constructed by law(s). In this part, I compare and contrast the qualitative
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4 Amy Jackson
methods used by Bano with those of my own in order to describe how legal
pluralists could use qualitative methods.
In my study, by drawing on Kleinhans and Macdonald’s legal pluralist
approach, what is law, in a particular situation, is found by questioning the
narrative accounts of people. I asked a total of seventeen Muslim women, between
18 to 36 years of age and from a range of socio-economic backgrounds, a variety
of questions relating to their experiences of the practice of veiling and the ideas of
identity, normativity, autonomy, and rights. 21 The four focus group discussions,
approximately one hour in length, were conducted at three locations in England. 22
The participants were asked a variety of questions relating to their experience of
the practice of veiling and the ideas of identity, normativity, autonomy, and rights.
In her research, Bano captures the narrative accounts of twenty-five British
Pakistani Muslim womens’ experiences of the rulings of shari’a councils. 23 Her
research is important because she details the process she followed in order to
document these accounts. 24
The two studies are comparable because they capture narrative accounts of
people in relation to law and highlight the existence of intersecting (or hybrid)
identities. First, Bano argues that ‘as primary users of sharia councils’ the
narratives of British Pakistani Muslim women ‘must underpin any such debates’. 25
In my study, it is also important that the narrative accounts of Muslim women who
veil in Britain underpin debates. Currently these accounts are excluded from
discussions by those who are against the practise. 26
Second, in her research, Bano highlights her study participants’ experiences of
intersecting identities. For example, on participant stated:
I do identify myself as both British and Muslim, so I
don't want to support initiatives that mean that I have to
choose between one kind of legal system and, you
know, choose whether I'm British or not and then which
legal system to go to. It's just not feasible and anyway
it's not right. Reality is a lot more difficult than
choosing between one or the other! (Parveen,
Birmingham).
Qualitative data gathering methods enable researcher’s to capture the way in which
legal subjects explore a variety of possible worlds and selves that they can reflect
and project. Also in discussions during my study, participants described themselves
as British Muslims. Lamaya, for example, described her identity in the following
way:
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Does Qualitative Data Gathering Enlighten a Legal Pluralist Study of Law? 5
we were born or raised here, or raised here [at least];
we’re out of that culture [of our parents] and we’ve got
a fresh look at everything - Pakistani culture, the
religion, the British culture, we can actually look into all
three.
The findings of both Bano’s and my study call for more intense scrutiny of legal
subjects conceived as carrying a multiplicity of identities. However, both studies
diverge on their underlying concept of law. Bano points to the need for people to
belong to a normative order or cultural community, whereas, in my study I
consider the idea that people construct and are constructed by law. Consequently
the studies diverge on their methods of qualitative data gathering. Ian Dey asserts
that ‘[j]ust as Eskimos distinguish varieties of white, so researchers distinguish
varieties of qualitative [analyses]’. 27 The methods Bano employed for her study
were conducting ethnographic work at shari’a councils and one-to-one interviews
with British Pakistani Muslim women. First, Bano observes the divorce
proceedings of shari’a councils in order to explore the gendered nature of these
normative orders. As my study is not influenced by an institutional notion of law
ethnographic research is an inappropriate method of data gathering.
Second, Bano conducted twenty-five one-to-one interviews. Bano contacted her
participants during a difficult period in their lives as these women were going
through divorce proceedings at the time her study was conducted. A disadvantage
of one-to-one interviews is that the number of views and opinions available to the
research is limited. In comparison, David Morgan states that focus group members:
share their experiences and thoughts, while also
comparing their own contributions to what others have
said. This process…[is] useful for hearing…a range of
responses to the topic….[and] provide data on what the
participants think but also why they think the way they
do. 28
Bano used one-to-one interviews in her study due to the private nature of the issues
her participants discussed. In my study, the focus group method is appropriate
because the study participants are encouraged to discuss and debate the topic.
In her research, Bano selected the participants for her study who shared her
own heritage. 29 Anne Oakley argues that ‘the goal of interviewing is best achieved
when the relationship of interviewer and interviewee is non-heirarchical and when
the interviewer is prepared to invest his or her own personal identity in the
relationship’. 30 In my study, the participants and I have different cultural
heritages. 31 However, the participants and I live in Britain. On the one hand, Bano
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6 Amy Jackson
argues it is difficult to class their interpretation of white researcher as authoritative
because ‘interviewee’s view them with distrust, hostility and exclusion’. 32 On the
other hand, Yasmin Alibhai-Brown, for example, has affirmed that women from
minority backgrounds:
never gave the white women the right to feel free
enough to comment and have a proper exchange with
us about the choice we were making and the ways in
which are communities worked. 33
It is worth noting my study participants’ attitude towards the questions I posed.
Generally the participants provided helpful and informative responses. For a visual
illustration of the types of covering Muslim women wear Ansia, for example,
suggested that I look at ‘Islamic clothing web-sites’. 34 Raani argued that ‘even the
picture of Mary, yeah you know (looks at me), she’s wearing a veil on her hair’.
Humera stated ‘[y]ou don’t have to be a Muslim to dress modestly…look at what
you’re (looks at me) wearing today’. One problem with the approach in the present
study is that the role of a researcher is reduced to interpreting people’s normative
interpretations: it provides an objective study of subjective law(s), rather than
producing an autobiographical account.
3. Conclusion
This chapter explored why and how qualitative data gathering methods
enlighten a legal pluralist study of law and society. In the first part, I considered the
theoretical advantages. Legal pluralists, traditionally, question which normative
order has jurisdiction over a given legal subject over a given legal subject in a
given situation at a given time. By investigating this question they perpetuate an
institutional perspective of law. In questioning which normative order a legal
subject perceive himself or herself to be acting, focuses on how they perpetuate of
institutional norms. Kleinhans and Macdonald argue that the questions legal
pluralists should be posing are how are legal subjects constructed by and construct
law(s)? They shift analytical focus from the traditional legal pluralist
acknowledgment of the operation, interaction and conflicts between multiple
homogenous normative orders, to the heterogeneous imaginations and creative
capacities of legal subjects. As qualitative data gathering deals with ‘meanings’
these methods are appropriate for legal pluralist studies which question whether
certain practises adopted by people have a normative (or legal) meaning.
In the second part of the chapter I compared and contrasted Bano’s study with
my own. Both studies capture the narrative accounts of study participants and point
to the existence of hybrid identities. However, the studies use different qualitative
methods of data gathering which leads to different results. Rather than locating law
in institutional normative orders, my research provides a non-essentialist
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Does Qualitative Data Gathering Enlighten a Legal Pluralist Study of Law? 7
perspective of law. I contend that qualitative data gathering enlightens a legal
pluralist study in the area of cultural and religious diversity by opening a
constructive dialogue between study participants and researchers who are
representative of the majority of liberal society.
Notes
7

1 Jonathan Grix. The Foundations of Social Research, New York: Palgrave Macmillian, 2004, p. 32.
2 Pluralistic images of law and society include: a definition of law as the self-regulation of semi-autonomous
social fields (see, John Griffiths, ‘What is Legal Pluralism?’ Journal of Legal Pluralism 24 (1986), 1–55.
Griffiths theorises the plurality of normative orders following Sally Faulk Moore’s notion of the semiautonomous
social field, see Sally Faulk Moore, ‘Law and Social Change: The Semi-autonomous Field as the
Appropriate Subject of Study’, Law and Society Review 7(4) (1973), 719–746); and a three-level system of law
that consists of official, unofficial law and legal postulates (see Masaji Chiba, M. ed., Asian Indigenous Law in
Interaction with Received Law, London: KPI. Ltd, 1986).
3 For example, by Werner Menski in terms of the development of a hybrid laws, such as, ‘Angrezi Shari’a’ law.
Werner Menski and David Pearl, Muslim Family Law, London: Sweet and Maxwell, 1998.
4 Particularly following the comments made by the Archbishop of Canterbury (Rowan Williams) on the
‘transformative accommodation’ of shari’a councils into the English legal system. See Rowan Williams, ‘Civil
and Religious Law in England: A Religious Perspective’, Ecclesiastical Law Journal 10 (2008), 262–282.
5 For the purposes of the paper, the phrase the ‘practice of veiling’ refers to the various ways Muslim women
conceal their heads, bodies, and faces in public by wearing garments such as, a hijab, a niqab, a jilbab or a
burqa.
6 For cases on the prohibitions of veils in schools, see R (on the application of Begum) v Headteacher and
Governors of Denbigh High School [2007] 1 A.C. 100; [2006] U.K.H.L. 15; [2006] 2 W.L.R. 719; [2006]
H.R.L.R. 21 (HL); and R (on the application of X) v Headteachers and Governors of Y School [2007] E.W.H.C.
298; [2007] All. E.R. (D) 267 (HL). For cases on the prohibitions of veils in places of employment, see, Azmi v
Kirkless Metropolitian Borough Council, Employment Appeal Tribunal, Appeal No.UKEAT/009/07/MAA
(2007); and Bushra Noah v Sara Desrosiers (Trading as Wedge), ET 2201867/ 2007.
7 For example, see Saied R. Ameli and Arzu Merali, British Muslims’ Expectations of the Government: Hijab,
Meaning, Identity, Otherization and Politics: British Muslim Women. London: Islamic Human Rights
Commission, 2006; and Claire Dwyer, ‘Veiled Meanings: Young British Muslim Women and the Negotiation of
Differences’, Gender, Place and Culture 6(1) (1999), 5–26.

8 I further discuss the findings of the study in a forthcoming paper entitled ‘A Subjective Legal Pluralist Study
on Muslim women and the Veil in Britain’.
9 Martha-Marie Kleinhans and Roderick Macdonald, ‘What is a Critical Legal Pluralism?’ Canadian Journal of
International Law and Society 12(2) (1997), 25-46.
10 The term ‘normative order’ describes the law-like quality of social associations. Examples of normative
orders are: the political state (state-law) and public institutions (such as, schools or Universities).
11 Griffiths, op. cit. n 2.
12 Kleinhans and Macdonald, op. cit. n 9, p. 36.
13 Williams, op. cit. n 4. In his comments the Archbishop of Canterbury was influenced by Ayelet Shachar
notion of ‘transformative accommodation’ whereby two legal systems (such as, the English legal system and
shari’a councils) mutually accommodate one another. See Ayelet Shachar, A. Multicultural Jurisdictions:
Cultural Differences and Women’s Rights, Cambridge: Cambridge University Press, 2001.
14 Kleinhans and Macdonald, op. cit. n 9, p. 36.
15 Samia Bano, ‘In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and
the ‘Sharia Debate’ in Britain’, Ecclesiastical Law Journal 10 (2008), 282–309.
16 Ibid., p. 306.

17 Kleinhans and Macdonald, op. cit. n 9, p. 36.
18 Ibid., p. 42.
19 See further, Catherine K. Reissman, Narrative Analysis (Qualitative Research Methods), Newbury Park: Sage
Publications, 1993. Reissman discusses how researchers can find examples of the language of obligation in
peoples narrative accounts.
20 Roderick A. Macdonald, Lessons of Everyday Law. Montreal: McGill Queen’s University Press, 2002.
21 All the participants wore a hijab (with two exceptions: one participant wore a niqab; and another no longer
wore a hijab).
22The pilot study and a second study were conducted with students at the University of Reading; another study
was conducted in the wider South East area, at an Islamic Cultural Centre in Bracknell; and finally, a session was
conducted in another part of England, at a Muslim Woman’s Organisation in Manchester.
23 Samia Bano, “‘Standpoint’, ‘Difference’ and Feminist Research’, in Reza Banakar, and Max Travers, eds.,
Theory and Method in Socio-Legal Research, Oxford: Hart Publishing, 2005, 91–111, p. 98.
24 Anne Oakley, ‘Interviewing Women: A Contradiction in Terms’, in Helen Roberts, ed., Doing Feminist
Research, New York: Routledge, 1981, 30–61, p. 31 ‘few sociologists who employ interview data actually bother
to describe in detail the process of interviewing itself’.
25Bano (2008), op. cit. n 15, p. 286.

26 Such as, liberal feminists, see Susan Moller Okin, ‘Is Multiculturalism Bad for Women?’ in Susuan Moller
Okin et al. eds., Is Multiculturalism Bad for Women? Susan Okin Miller With Respondents, Princeton: Princeton
University Press, 1999, 7-47.
27 Ian Dey, Qualitative Data Analysis; A User-friendly Guide for Social Sciences. London: Routledge, 1998, p.
1.
28 David Morgan, ‘Focus Group’, in Victor Jupp ed., The Sage Dictionary of Social Research Methods, London:
Sage, 2006, 121-123, p. 121.
29 Bano (2005), op. cit. n 23, p. 109 ‘[m]y being British Pakistani also brought up issues of commonality and
difference’.
30 Oakley, op. Cit. n 24, p. 41.
31 The participants were from a variety of family origins, such as: the Middle East, Saudi Arabia, Pakistan,
Bangladesh, Libya, Syria, Egypt, Mauritius, Somalia and Algeria.
32 Bano (2005), op. Cit. n 23, p. 103.
33 Yasmin Alibhai-Brown, Who Do We Think We Are?: Imagining the New Britain, London: Penguin, 2001, p.
210.
34 In order to preserve the participants’ anonymity, pseudonyms replace their real names.
Bibliography

Yasmin Alibhai-Brown, Who Do We Think We Are?: Imagining the New Britain, London: Penguin, 2001.
Samia Bano, ‘In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the
‘Sharia Debate’ in Britain’, Ecclesiastical Law Journal 10 (2008), 282–309.
Samia Bano, “‘Standpoint’, ‘Difference’ and Feminist Research’, in Reza Banakar, and Max Travers, eds.,
Theory and Method in Socio-Legal Research, Oxford: Hart Publishing, 2005.
Masaji Chiba, M. ed., Asian Indigenous Law in Interaction with Received Law, London: KPI. Ltd, 1986.
Ian Dey, Qualitative Data Analysis; A User-friendly Guide for Social Sciences. London: Routledge, 1998.
Claire Dwyer, ‘Veiled Meanings: Young British Muslim Women and the Negotiation of Differences’, Gender,
Place and Culture 6(1) (1999), 5–26.
John Griffiths, ‘What is Legal Pluralism?’ Journal of Legal Pluralism 24 (1986), 1–55.
Jonathan Grix. The Foundations of Social Research, New York: Palgrave Macmillian, 2004.
Martha-Marie Kleinhans and Roderick Macdonald, ‘What is a Critical Legal Pluralism?’ Canadian Journal of
International Law and Society 12(2) (1997), 25-46.
Roderick A. Macdonald, Lessons of Everyday Law. Montreal: McGill Queen’s University Press, 2002.
Werner Menski and David Pearl, Muslim Family Law, London: Sweet and Maxwell, 1998.
Sally Faulk Moore, ‘Law and Social Change: The Semi-autonomous Field as the Appropriate Subject of Study’,
Law and Society Review 7(4) (1973), 719–746.
David Morgan, ‘Focus Group’, in Victor Jupp ed., The Sage Dictionary of Social Research Methods, London:
Sage, 2006.

Anne Oakley, ‘Interviewing Women: A Contradiction in Terms’, in Helen Roberts, ed., Doing Feminist
Research, New York: Routledge, 1981, 30–61.
Susan Moller Okin, ‘Is Multiculturalism Bad for Women?’ in Susuan Moller Okin et al. eds., Is Multiculturalism
Bad for Women? Susan Okin Miller With Respondents, Princeton: Princeton University Press, 1999, 7-47.
Catherine K. Reissman, Narrative Analysis (Qualitative Research Methods), Newbury Park: Sage Publications,
1993.
Ayelet Shachar, A. Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge:
Cambridge University Press, 2001.
Rowan Williams, ‘Civil and Religious Law in England: A Religious Perspective’, Ecclesiastical Law Journal 10
(2008), 262–282.
Reports
Saied R. Ameli and Arzu Merali, British Muslims’ Expectations of the Government: Hijab, Meaning, Identity,
Otherization and Politics: British Muslim Women. London: Islamic Human Rights Commission, 2006.
Amy Jackson, PhD candidate at the School of Law, University of Reading.