Sociological constitutionalism versus constitutional ethnography (25 May 2023)

Helgeland coast. Photo: Inger-Johanne Sand.

This is a version of the oral presentation I prepared for a seminar in Oslo celebrating the life and work of Inger-Johanne Sand. The enlarged essay will eventually be available in a Festschrift published by Karnov.


The photo above is from the Helgeland coast in Northern Norway where Inger-Johanne Sand has her family house. It was attached one year to our habitual exchange of seasonal greetings. I’d like to think that now as a fully served emerita, Sand can sit in that room behind the upper floor windows of the house, look out over the fjord towards the Seven Sisters mountain range seeing the dolphins play, and ponder about her eloquent ripostes to our interventions today.

My intervention as well as the paper that I’ll be offering for the Festschrift has two main objectives. First, I wish to suggest that sociological constitutionalists like Sand should adopt a qualitative element to their research making it more akin to ethnography than, say, system theory. And second, I shamelessly present my own project on the spatial dimensions of constituted power as an example of such an ethnography.

My starting point is an article that Sand wrote some years ago (Sand 2012). The title of the article contains a question that is apparently rhetorical: ‘What kind of theory do we need?’ My answer would be that we don’t really need new theories at all. Instead, we need some level of ‘empiricism’ that could anchor the concepts we already have to reality. I confess that I am allergic to the kind of hollow conceptualism that Niklas Luhmann represents.

I propose to introduce that empiricism through what Kim Lane Scheppele has called constitutional ethnography (Scheppele 2004; Scheppele 2017). In other words, constitutional ethnography represents a qualitative approach to the empiricism of constitutional phenomena. In the actual paper, I first draw on Scheppele to provide a few signposts. Then I proceed to see how those signposts would apply to the study of the spatial dimensions of public power, or ‘constituted space’ as I call it. I understand space both in concrete terms, that is, as the urban planning of administrative centres and the architecture of constitutional institutions, and symbolically, that is, as constitutional governance charts familiar from textbooks and the public service designs of e-governance.

I connect this ethnography to space with the help of Henri Lefebvre’s well-known ‘spatial triad’ (Lefebvre 1991). The three dimensions of the triad are, first, conceived space, that is, space as it has been conceptualised by urban designers and architects, second, perceived space, that is the regularity of movement within the space as it has been conceptualised by urban designers and architects, and, lastly, lived space, that is, the everyday spatial experiences of individuals irrespective of how that. space has been conceived and perceived. The first dimension lends itself to qualitative document analysis in the archives, the second to the observation of habitual spatial behaviour, and the third to a visual ethnography involving walking in the designated areas and photographing them.

This type of approach leads to a type of ‘experiential ethnography’ where the method is, indeed, the researcher herself. Such an epistemology may well be suspect in the social sciences, but it has a kinship with the hermeneutic humanities to which even law belongs. Because the researcher belongs to the world that she is studying, her own experiences of the spatial dimensions of public power are relevant in the same way as, for example, Thomas Mathiesen’s personal experiences of the prison the inmates of which he was studying (Mathiesen 1965).

Sand is, no doubt, a critical legal scholar. Just a shot of empiricism doesn’t, of course, make any project critical. I have elsewhere suggested that critical legal studies cannot have a method at all but only an ‘attitude’ (Minkkinen 2013). In this particular case, I conclude by proposing as such a critical attitude Zoran Oklopcic’s notion of ‘Southern constitutionalism’ (Oklopcic 2016). Southern constitutionalism is not directly related to the so-called ‘Global South’ of postcolonial studies. It is, rather, a conscious acknowledgement of the failure of liberal democracy in the light of globalism.

Thank you, Inger-Johanne, for your magnificent contribution to our discipline(s) and for your generous collegiality. I’m sure I am not alone in feeling confident that much more is still to come.


Lefebvre, Henri (1991) The Production of Space. Trans. Donald Nicholson-Smith. Oxford: Basil Blackwell.

Mathiesen, Thomas (1965) The Defences of the Weak. A Sociological Study of a Norwegian Correctional Institution. London: Tavistock Publications.

Minkkinen, Panu (2013) ‘Critical Legal “Method” as Attitude’, p. 119-138, in Dawn Watkins and Mandy Burton (eds.), Research Methods in Law. Abingdon: Routledge.

Oklopcic, Zoran (2016) ‘The South of Western Constitutionalism: A Map Ahead of a Journey’, Third World Quarterly, Vol. 37, No. 11: 2080-2097.

Sand, Inger-Johanne (2012) ‘Rettssosiologisk teori i komplekse samfunn: Hva slags teori har vi behov for?’, Kritisk Juss, Vol. 38, No. 3-4: 181-203.

Scheppele, Kim Lane (2004) ‘Constitutional Ethnography: An Introduction’, Law and Society Review, Vol. 38, No. 3: 389-406.

Scheppele, Kim Lane (2017) ‘The Social Lives of Constitutions’, p. 35-66, in Paul Blokker and Chris Thornhill (eds.), Sociological Constitutionalism. Cambridge: Cambridge University Press.