Dancing on the edge of disciplines: law and the interdisciplinary turn

Abstract

This piece looks critically at the issue of interdisciplinarity and multidisciplinarity within legal study and research. It examines and analyses trends within legal education, before looking at a number of disciplinary approaches within sport. It then considers the interface between law and sport, and argues in particular, and following Bourdieu, that sport is a rare field that allows a number of approaches to be taken, whilst privileging none of them. It argues that rather than seeing law as the focal point of inquiry, sport becomes the focus and that by fostering an approach that allows various disciplinary approaches to be adopted and challenged, sport allows true interdisciplinarity to take place.

Keywords

sports studies, legal theory, legal education, multidisciplinarity, Interdisciplinarity

How to Cite

Osborn, G., (2016) “Dancing on the edge of disciplines: law and the interdisciplinary turn”, Entertainment and Sports Law Journal 8(1), p.2. doi: https://doi.org/10.16997/eslj.41

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Introduction

 

One of the stated aims of the Leisure Entertainment and Governance (LEGo) programme (Carlsson, Hjelseth and Osborn, 2010) was to encourage an interdisciplinary approach to the academic study of sport. That raises the issue of what exactly is meant by ‘interdisciplinary’ in terms of a potential application to a specific segment of social life, such as sport, which in turn makes the question of the nature of academic disciplines problematic (Becher & Trowler, 2001). It also raises, for legal scholars, issues as to the forms of intervention by other disciplines into legal studies, and whether or not a socio-legal scholar is only assembling bits of knowledge, rather than creating properly integrated concepts and methods. This article draws specifically upon the experiences surrounding, and issues inspired by, the creation and delivery of the LEGo initiative. In so doing, it examines a number of issues around the possibilities, and problems, of interdisciplinary study. In particular we celebrate the role of sport, and sports studies, as a testing ground for a variety of disciplinary and theoretical approaches. In order to do this, this piece examines a number of approaches to the study of law, before going on to consider some of the issues surrounding interdisciplinary approaches to the examination of sport.

1

History of non-formal approaches to the study of law

 

Traditionally law is seen as a conservative discipline. As Samuel noted (2009, p. 432) when discussing possible interdisciplinary responses to law:

Could it not be said that much legal education and scholarship functions within a methodological and paradigm framework that tends to encourage rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’.

2

Part of this framework is inculcated by what we might term ‘academic’ law’s often uneasy relationship with the legal profession. As noted elsewhere (Greenfield, Osborn and Robson 2010), the requirements of the profession, in conjunction with academic benchmarking, has greatly influenced legal curricula and the agenda of law schools. Many commentators have called for broader, contextual approaches to be adopted within the law school (for example Bradney, 2003; Greenfield and Osborn, 2006), whilst Watt (2006) has further argued that his own vision was for the law school to embrace the imagination rather than being tied so fully to pedagogical concerns. Much of this debate has been as part of a reaction to a black letter hegemony, or a dependence on ‘the formal’, that historically dominated the law school, both in terms of research and teaching. As Sugarman (1991, p. 34) noted, ‘the “black letter” tradition continues to overshadow the way we teach, write and think about law. Its categories and assumptions are still the standard diet of most first-year law students and they continue to organise law textbooks and case books’. This hegemony has been challenged on a number of fronts, as noted elsewhere (Osborn, 2001), to the extent that the socio-legal has become the dominant approach in the UK (Samuel, 2009; McCrudden, 2006). It is useful to begin the examination of this change by charting some of the trends and approaches that challenged the traditional orthodoxy.

3

One of the earliest moves in British legal education away from formal law was Contextualism. Often associated with Warwick Law School, this approach had several key elements but at its heart was the idea that law should be studied in its social setting, and that by doing so the actual operation of law, as opposed to its formal statement, would be understood. ‘Law in practice, not law in theory’ and ‘Law on the streets, not law in books’ were the rallying cries of the early pioneers at Warwick (Folsom & Roberts, 1979). The perceived weakness of law in context, however, was that it privileged law as an ideology, and the study of context was not pursued as a goal in its own right but rather as an aid to understanding the actual operation of the law. Therefore ‘neighbouring’ disciplines were raided in a magpie fashion for help with reconstructing the legal field. There was no real attempt to merge disciplines into a single unified discourse.

4

Contextualism as an approach shades into socio-legal studies, which also influenced legal education from the 1970s onwards. There has been much discussion of exactly what is involved in socio-legal studies (Cotterrell, 2002; Hillyard, 2002), but a chief differentiating factor is implicit in the title. Society, or even more specifically sociology as an academic discipline, is given prominence and equal status in this approach. As a potential avenue for interdisciplinary studies, this has limitations, but at least tries to de-emphasise the formality of law in favour of an attempt to integrate disciplines. There are, however, weaknesses in the socio-legal approach. It promises a multi-disciplinary approach but in practice degenerates far too often into a view that law’s operation can be illuminated from a different perspective temporarily adopted. Socio-legal studies are frequently empirical studies, undertaken with an (often limited) statistical background, and with an explicit policy agenda either to reform a badly functioning legal institution or to monitor the working in practice of a legal reform.

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A further move away from formal law was to decentre law, in both its ideological and its practical forms, and to argue that the proper socio-legal approach was to reverse the polarities and study society as the prime object. Only then, it was argued, could we understand law’s role in society. This approach leads to the sociology of law with the central object of study being society, and thus sociological theory as the main route to knowledge. The debate between sociologists of law and socio-legal scholars was a feature of legal intellectual life in the 1970s (Campbell and Wiles, 1976). Sociology of law was, however, to some extent overtaken and marginalised in the 1980s by the emergence of Critical Legal Studies (CLS). As Redhead notes (1995, p.18) when discussing the Conference on Critical Legal Studies (CCLS):

What marked out the CCLS enterprise from other contemporary legal scholarship in the early 1980s was the alternative explication of legal texts, using as Duncan Livingston points out, ‘interpretive techniques of other disciplines – semiology, phenomenology and structuralism, for instance’ and its stress on the importance of civil as well as criminal law, not merely its revistation of much of the ground trodden by American legal realism before World War II.

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The CLS approach marked a retreat into the legal citadel from the swamps of sociology of law. Previous attempts to understand law from other perspectives had not really challenged the nature of law, but rather criticised the gap between its formal rhetoric and its social operation. CLS treated law as an ideology and was more concerned with uncovering the deep power structures and unspoken assumptions about the social order that were disguised by its formal discourse. A chief insight of CLS was to deconstruct the ideology of law. A key text within this canon was David Kairys’ The Politics of Law (Kairys, 1990), which sought to see law within its ideological context and collected together essays that viewed areas of law through a different lens to the traditional. The unmasking of the political was mirrored in the United Kingdom with The Critical Lawyers Handbook (Grigg-Spall and Ireland, 1992).

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CLS allowed, perhaps as an unintended consequence, the nature of law to become a central concern and thereby diminished the relevance of other social sciences. Indeed, arguably the most relevant outside discipline was literary theory for it allowed law to be studied as a discourse or narrative with a deep hidden structure. The reorientation represented by the CLS movement allowed legal scholars a more centred approach to law without having to ally themselves to the dead hand of formal law. Consequently it was open to ask questions of the nature of law without too much reference to other disciplines.

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One such approach was the notion of ‘soft law’, something mainly formulated in the international and European law literature. It refers to regulatory or non-legal instruments without the binding force of traditional or hard law. Examples are non-treaty agreements in international law (Hillgenberg, 1999) and policy guidelines to be followed by institutions with regulatory powers such as the European Commission (Trubeck and Trubeck, 2005). The spread of new regulatory modes within globalisation is a factor and this approach consequently concentrates on ‘governance without government’ (Morth, 2005).

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Another related, but more influential approach, was regulation theory (Baldwin and Cave, 1999; Ogus, 2009). This treated law as a sub-category of regulation and thus allowed legal scholars to study the workings of important non-governmental organizations ignored by traditional legal theory. This contextuality was encouraged by the rise in privatised utilities that required regulators, the increased importance of European law, and the growth of intervention, by regulation, into spheres such as medicine and sport. Areas such as these had historically seen very little legal intervention (Foster, 2006). It is a key element of this approach that the state is not necessarily central to regulatory governance. Scott (2004) has argued that the law’s capacity to control is limited and that such control is in any event marginal to contemporary processes of ordering. Effective regulation needs to link state law with other ordering processes. The rise of regulation theory has meant that socio-legal approaches appear to offer fewer insights and that full blown use of social science disciplines are less used to study law. Arguably these recent developments have created a crisis for what is now seen as the traditional socio-legal framework and has lead some legal scholars to seek fresh theoretical insights, to frame research questions in different ways, and to develop new sub-disciplines (Hillyard, 2002; Banakar and Travers, 2005; Samuel, 2008).

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Sport studies in context

 

At the same time that law has had to deal with various challenges and changes, the role of sport, and its status and treatment as an academic subject, has increased rapidly. Whilst sport studies might be seen as a fairly recent area of academic study, sports have been subject to excavation via a number of different disciplines, and, in fact, it has a long historical pedigree; Coakley and Dunning (2000) note that sociology has examined sport since as early as 1921. The area is, in any event, rapidly expanding and Coakley and Dunning (2000, p xxi) chart a movement away from a solely physical education context to sport to a ‘…dawning recognition among university teachers of physical education that sport and physical education are social practices and that they are culturally and historically relative’.

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Whilst written some years ago, and identifiably set within the mindset of the Leicester School and its figurational approach, Coakley and Dunning’s Handbook of Sport Studies (2000) provides a neat barometer of the themes and threads that make up sports studies today; in particular it illustrates neatly its potential coverage and landscape. Whilst broadly framed within sociology (‘the sociology of sport’, itself with its own traditions, and indeed a number of well respected international journals), the handbook details myriad approaches both within the sociological tradition (Functionalism, Marxism, Cultural Studies, Feminism, Figurational Theory, Post-Structuralism), in addition to illustrating its connection with, and relation to, other disciplines. For example, the book has separate chapters on anthropology, economics, human geography, history, philosophy, politics and psychology. Perhaps curiously, the law was absent from its purview but the editors made the point clearly that the contours of the area necessitate particular shifts and approaches being taken; they make the point in fact that the hypothetical editor looking back on this text in 2020 might see it as naïve and incomplete. Blake made a similar point in The Body Language, that sport has historically been absent from cultural studies, and considered this to be something of a mystery given its importance and visibility on a global scale (Blake 1996). Hargreaves (1982), for example, has partially answered this by arguing that Cultural Studies has in fact created its own form of cultural elitism, and that this elitism has marginalised sport. As Hughson, Inglis and Free (2005, p. 83) put it; ‘It is somewhat galling that an academic profession that has spent so much time berating the elitism of Leavis – and even Hoggart – has unwittingly nurtured a research culture that has de-privileged a major form of popular culture’. We have seen a similar response from within the legal academy to intersections of law and popular culture (Bradney, 2003 & 2006; Greenfield and Osborn, 2006b).

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We would argue that sport provides a unique and important platform for multidisciplinary and interdisciplinary approaches. Sport as a context and a field of study allows us to study how all social science disciplines can impact on it. Viewed from a legal perspective the role of formal law is restricted but lawyers need to appreciate the law from within a broader regulatory perspective without privileging the law. Only by such an initially multi-disciplinary approach can lawyers begin to see clearly the law’s role, and this requires us to see law both as a form of regulation wider than formal law, and to see law in a pluralistic form so that we are not blind to non-state rules that are vitally important to the governance of sport.

13

One irony of regulation theory, as referred to above, was the focus on unregulated or under-regulated social spheres. Importantly, areas such as sport allowed the emergence of a new and different form of contextualism, and one that reversed its paradigm. Not law of sport in its context, but sport in the context of regulation and with the regulatory framework including the area of law itself. This put sport in a context that allowed many other disciplines to contribute to an understanding of it, and privileged sport as the focus of attention. Rather than a socio-legal type approach, with law as its epicentre, this approach took sport as the point of departure and allowed an analysis that could consider how areas of social science, including law, impacted upon it. Sports studies draws on various academic disciplines, and this variety increases the opportunities for multi-disciplinary work. Before considering the various lenses through which sport can be viewed, one initial question concerns defining the terrain, and is problematic. In essence, is sport a unified context? Sport shades into leisure and thus overlaps with a sub-discipline of leisure studies. Sport in addition has, notwithstanding Blake’s point above, become a key component of popular culture, and thus scholars of popular culture have given it prominence. In terms of its relationship with the law, law is about commodified relationships and in the context of sport has become more important as sport has become more commercialised and professionalised (Greenfield and Osborn, 2001).

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As noted above, sport can be viewed through the gauze of various disciplinary perspectives and important insights can be gleaned from all of these. This is in fact the strength of sport; it can be used as a testing ground without being located within a specified discipline, and the various insights can all be viewed on equal terms, rather than through a hierarchical lens where one particular approach predominates or is privileged. Of course, at the same time many of these disciplines shade and cross into each other, and, as can be seen below, areas such as politics and economics, for example, often overlap with law and other disciplines.

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In terms of disciplinary approaches to sport, the politics of sport has been of major disciplinary interest. Key amongst these has been the role of the State and the issue of government policy and approach. Whilst the role of the State can be seen as falling within the political sphere, it can just as easily be seen as part of the sport and law debate around the interrelation between the role of law and possibilities of self regulation (Gardiner et al, 2006). The State has been heavily involved in regulating sport historically (Holt, 1989; Osborn, 2000), as well as football falling specifically within its gaze more recently (Greenfield and Osborn, 2001). Of course other pastimes such as blood sports have similarly been regulated and periodic calls have been made to outlaw boxing. These can be seen as part of policy or proposals, with law as the mechanism to enact them. In addition, a wide-ranging variety of topics have been studied such as national identity, the impact of globalisation, protests and protest movements, as well as a number of examples that have analysed the Olympic Games and the Olympic movement (Hill, 1996). Likewise there have been many different theoretical approaches, such as policy analysis (Houlihan, 1997). A great example would be studies that examine government policy and the politics of the Olympic Games; certainly examples from Moscow (1980) and Los Angeles (1984) would fulfil this. So we can see both the politics in sport and the politics of sport. On politics and sport, texts such as Allison (1986, 1993, 2005) and Houlihan (2000) are both invaluable and key reference points.

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As noted above, often the boundaries between disciplines are occluded or indiscrete. Much of sport history, for example, could of course been seen through a political frame, but nevertheless history has proved a fruitful discipline, and sports history has become a recognised area of study. The area has its own international journal, the International Journal of the History of Sport, which has been published since 1984 and is extremely highly regarded. Sport is relatively well documented in a historical sense and there has been much discussion of popular sports such as football and cricket. Traditionally, sport historians perhaps concentrated upon specific areas or events, using sports such as football (Magoun, 1929; Young, 1969). As such there was a danger of work being seen as merely descriptive – see for example the work of Strutt (1801). There have been notable and important historical texts that have attempted to view sport in terms of its cultural history, Tony Mason’s Sport in Britain (1988) being one example. Certainly the idea of a critical approach to sports history is of more recent origin, and to a large degree arose as a result of sports historians beginning to utilise approaches and methodologies from other disciplines, with the use of theoretical tools drawn from Gramsci, Bourdieu and others emerging, where sports history became more of a social history of sport. Whilst Guttman’s (2000) book appears from the title to be a history, for example, it charts social movements and draws on politics and other areas of study. More recently the gradual formalisation, commercialization and globalisation of sport have been persistent themes (Vamplew, 2007).

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Sociology has made an important contribution to sport studies. The International Sociology of Sport Association note, for example, that the first sociology of sport texts emerged during the 1920s. However, the real development of the area took place in the 1960s, and in particular with the creation of the International Committee for the Sociology of Sport in 1965. In terms of academic journals it is a rich area with the International Review for the Sociology of Sport pre-eminent, but a number of other journals such as Sport in Society carrying a high proportion of sociology based work. In terms of coverage, sociology of sport work has been wide-ranging and eclectic. The work of the Leicester School has been important with its emphasis on figurational sociology (Dunning, 1971). More recently, Bourdieu’s notions of social field are theoretically much used for example (Bourdieu, 1978), and Marxist analyses of sport have inevitably emphasized structures of power within sport and the commodification of labour (Brohm, 1977; Gruneau, 1999; Carrington and McDonald, 2009). At the same time, the increasing commercialism and professionalization of sport has inevitably led to the disciplines of economics and business studies paying more attention to sport as a business. Wladimir and Szymanski (2006) provide a neat overview of the area as a whole, and the work in management studies of key scholars such as Sean Hamil lie testament to this (Hamil and Chadwick, 2010).

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Whilst we have focussed above on sociology, cultural studies, history and politics, other areas such as psychology, philosophy, anthropology and human geography, whilst not as well established as approaches within sports studies, also provide great example of cross disciplinarity. However, our reason for providing such examples is to illustrate, if only in a very selective and necessarily subjective way, the ways in which different disciplines relate, coexist and intersect. Whilst we may come at the area from the perspective of someone trained in law, if not necessarily seeing ourselves as lawyers, it is vital to appreciate that other disciplinary approaches to the same material can illicit important and valuable responses outwith a monolithic reading. This in essence is the joy of interdisciplinary study, and the lure of sport as a field of study.

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Integrating theory and sports law

 

Sports law has only recently established itself as a discipline within law schools, and it has consequently suffered from a poverty of theory. There have been some attempts to integrate sports law with mainstream socio-legal theory, with the two most successful approaches being regulation theory and global legal pluralism. Sports generally, but especially team sports that operate leagues, tend to have a distinctive regulatory structure. There is usually a sovereign international federation as most sports have a single governing body. National governing bodies in the federation will thus have exclusive jurisdiction over the playing and running of the sport at least at an organized level. There will be contractual links between the representative levels within the federations that can be fairly described as a constitution. There will be a basic rulebook that operates as the legislation for the sport. These rules will normally include the power to organize events, to licence competitions and to register players. All these activities establish the jurisdiction of the sovereign body and define who is subject to its authority. Breaches of the rules and maintaining proper order and conduct in the sport is normally the function of a disciplinary committee which acts as a court to investigate, adjudicate and punish where necessary. There will also be an appeal to a higher, independent and increasingly legal, body, and these features produce a micro legal system. This description of internal law within sporting associations is readily recognized as legal order operating in its own semi-autonomous field. In a celebrated Law and Society Association Presidential Address that examined where we get our ideas of law from, Stewart Macaulay noted (1987, p.211) that:

Legal Culture in everyday life is a partially charted area that the law and society community must study. Most complex societies rest on legal pluralism. There is an official law, but there are complementary, overlapping, and conflicting private legal systems as well. School TV and film and spectator sports offer versions of law that differ from that found in law schools.

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Sport provides a superb example of such a semi-autonomous field, and also of the pressures exerted on such fields. From this simple legal pluralist position two main strands have emerged. Foster has argued that the strength of the internal law tends to lead to an ideology of self-regulation and external law is limited to providing a facilitative or supervisory framework which allows autonomy within fluid boundaries, which are often procedural. Any greater degree of legal intervention can produce a process of juridification, whereby the internal legal order of sport readjusts itself by incorporating the external legal norms in order to preserve its own relative autonomy (Foster, 2006; Carlsson, 2009).

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A second strand has linked legal pluralism with globalization to create a theory of global legal pluralism (Ralf, 2009). This has three main hallmarks. First, that there is a plurality of legal orders within any social field. Second, that domestic state law coexists with other legal orders, even when it is formally hierarchal (Walby, 2007). Third, those transnational networks are becoming more dominant. Sport, with its prominent international dimension, is an excellent context in which to study the emergence of a global regulatory order. This order has been dubbed a lex sportiva to characterize its transnational formation in the regulation of sport by international federations and also the procedural structure of an international arbitration process now binding in most major global sports, the Court of Arbitration for Sport.

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There is an assumption here that the private transnational networks that are governed by sporting federations are alternatives to state institutions and legal rules enforced by national legal regimes and courts. There is, however, space for a third legal order, stemming from and reflecting sports’ capacity to circumvent both domestic and international law. Such a network can evade legal intervention and any constitutional order and set up parallel norms that are not governed by any existing legal framework, thereby creating a space of legal immunity and autonomy of governance. Such networks take over the regulatory functions of sport and the transnational nature of regulation makes national control and enforcement almost impossible. Sport, in effect, claims immunity from national legal orders.

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Interdisciplinarity and the potential for sports studies

 

Can these strands of socio-legal thought, as applied to the context of sport and especially the regulation of sport by international federations, help in terms of considering interdisciplinary work? An initial problem of definition arises. Different types of cross-disciplinary research have been described. In 1998 an OECD report distinguished multidisciplinary, interdisciplinary, and transdisciplinary referring to increasing levels of interaction among disciplines (OECD, 1998) as follows:

Multidisciplinary research describes work where there are different angles offered from different disciplines but without necessarily creating any synthesis or integration.

Interdisciplinary research aims to achieve a theoretical, conceptual, and methodological unity so that more coherent and integrated results are obtained.

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The final category of transdisciplinary refers to a process in which convergence among disciplines is observed, and it is accompanied by a mutual integration of disciplinary epistemologies (Klein, 1990). Also implicit in this initial definitional problem is the notion of what constitutes a discipline. A working definition might be a shared intellectual community with an agreed set of concepts, research methods and evidentiary criteria. The goal of interdisciplinary research thus becomes something unique that is conceptually or methodologically difficult to achieve within the boundaries of a single discipline, even by scholars with some knowledge of related fields. The knowledge that is produced by interdisciplinary research should transgress, transcend and transform disciplinary boundaries and this requires a reflexive methodology that examines the fundamentals of one’s epistemology.

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Nevertheless as a method it has practical and theoretical limitations. Several important questions can be raised. Is it just a collaborative research strategy or can it produce theoretical concepts that are genuinely transdisciplinary? What is the relationship with Foucault’s work on discourses; can an archaeology of knowledge be undertaken that will deconstruct the existing academic discourses? How do we answer the Luhmann objection that each discipline is not genuinely open and filters knowledge from other disciplines into its own conception framework (Luhmann, 1986)?

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There is also the danger that questions of research method, and the theoretical bases that are formed within the intellectual tradition of each researcher, are insufficiently queried by those collaborators from outside the paradigm. As Feyerabend has argued, we must avoid ‘assumptions which shape our view of the world without being accessible to a direct criticism. Usually we are not aware of them and we recognize their effects only when we encounter an entirely different cosmology’ (Feyerabend, 1975, p.22). Within law, and writing in 1959, Kramer was unconvinced by the claims of virtues of interdisciplinary study. He argued that even when real efforts were made to expand a law school or faculty by appointing economists, psychiatrists or sociologists, often the boundaries between the disciplines remained fixed and the departmental incomers often formed their own clubs or cliques:

They dutifully attend the law faculty meetings, and they dutifully speak up whenever they are called upon; but they keep right within their own tight little disciplines. And the lawyers similarly keep right within their own tight discipline. They each learn a little bit about the jargon off the other, so that they can talk nicely at conferences or cocktail parties, but not very much more is accomplished (Kramer, 1959, p.563).

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This perspective, some fifty years ago, seems rather old fashioned now in the light of the shifts and developments we have charted above. However, he is right to suggest that these approaches can create difficulties, particularly with the discrete vernacular that may be associated with different disciplines and also that whilst creating teams with expertise will be the usual approach, ideally a truly interdisciplinary approach would involve one person versed in the divergent approaches. Vick (2004, p.164) argued that law will never fully assimilate into other disciplines as its core identity, ie its inflexibility, its rigidity, its solipsistic tendency, will not be affected by interdisciplinary study. Samuel (2009) responded to the contentions of Vick by looking at the nature of law as a discipline and examining whether the stability, and perhaps myopia, of law as a discipline has created a situation where the discipline is threatened with intellectual bankruptcy. Webb (2006) further adds to this debate by categorising the relationship between law and sociology as ‘troubling’ and arguing that law has historically been seen as marginalising social context, insufficiently intellectually rigorous and that the area as a whole is under theorised. We would argue that by utilising sport as the focus of inquiry provides a more fruitful vehicle for an interdisciplinary approach that pushes some of the concerns around law to the periphery.

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Interdisciplinary efforts can be seen as both a research strategy and as an educational goal. The LEGo programme has both these aims. As a research strategy it involves academics from different social science disciplines engaging in a common project. As an educational goal it aims to produce integrated students capable of thinking outside the paradigms of the related disciplines. So, rather than seeing law as the focal point of inquiry, sport becomes the focus precisely because it is not a discipline, but allows a variety of approaches to be taken to it. Sport becomes the field to be surveyed, a social space via which a variety of approaches and methodologies can be viewed. This is the strength of sport, and this is the strength of the LEGo programme that uses sport as a site for interdisciplinary inquiry. By fostering an approach that allows these various disciplinary approaches to be challenged, both internally and externally, sport allows true interdisciplinarity to take place.

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Guy Osborn (University of Westminster and the Norwegian University of Science and Technology)

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