Discuss about the Research Methods for Law for Formalized Curiosity.
Research is deemed as a formalized curiosity where there is a lot of poking and prying done for a particular purpose. Under research there is a repeated search for certain aspect, for finding out some special knowledge or some different new things regarding the present facts. Legal research is a research of lawful doctrines, principles, rules, regulations, concepts and cases, along with their methodology. The key goal of legal research is to determine the policy, the nature and the purpose which govern the particular circumstance and also determine the present efficiency, adequacy, relevance or utility[1]. The examination of the legal precedents and principles which have been established by the tribunals, authorities and more importantly, the courts, is done by such bodies only that have the power of deciding upon the disputes and issues, in order to determine the scope of its application. For identifying the shortfalls of a current law or for highlighting the issues which have not been properly addressed, for examining the need of new law of extent of modifications needed in the existing law for remedying the situation, and for identifying the strengths and weaknesses of particular aspects of law, research is undertaken[2]. There are different methods of undertaking research, which can be applied in legal research. In general, the legal research is divided into two methods, i.e., doctrinal and non-doctrinal. In the research work, there is usually a combination of both these type. When there is a research which relates to certain legal questions, issues or problems, it is deemed as doctrinal, i.e., a pure legal research or a theoretical research. Where the legal research involves study of different aspects of social problems, questions, issue or society, it is deemed as socio-legal research[3]. This study is focused on the relative benefits and the limits of the doctrinal research and that of socio-legal research method.
Doctrinal research is at times referred to as an armchair research, and is deemed as crucial base of library study, due to the material which is required by the researcher could be available only in archives and libraries. It is a research of legal preposition where the pre-existing statutory provisions are analysed in addition to the present day case laws and the reasoning power of the researcher is applied[4]. Under this kind of research, different treaties, judgments, magazines, legal journals, and statutory texts amongst the other things are used and the researcher attempts to collect all the requisite material on the particular topic from these resources, after which the reasoning power is applied for the researcher to analyse the gaps, the problems and finally the conclusion is drawn. This research also involves the analysis of case laws where they are properly arranged, ordered and systematized on the basis of their legal preposition, and the study of legal institution is done through rational deduction and legal reasoning[5].
Socio-legal research method is gaining recognition as the researchers have identified the need of employing a wide variety of methods while undertaking the study of law and the legal phenomena, along with the need of being informed regarding an understanding of debates regarding the methods and theory in the mainstream social science. In the recent time period, the doctrinal legal research has been jolted as a result of changes in the political philosophy of law where the welfare states have envisaged the social economic transformation through the legal institutions and through the law, along with the functional facets and the consequential new substantive law in addition to some compelling pragmatic considerations which are raised from this particular metamorphosis. The social legal perspective studies the law as a social phenomenon of sub-discipline of sociology. And sociology of law has been defined as an empirical social science which is aimed at the design of theory which relates to the social control[6].
There are a number of benefits and limitations of doctrinal legal research. Amongst the various advantages, some have been covered here. The first one is that the doctrinal legal research involves an analysis of the legal concepts, doctrines and principles, along with the logical ordering and also the systemizing of the legal propositions which emerges from the practical utility. This method helps in providing a quick answer towards the problems, since there is a continuous engagement of the researcher in the exposition, as well as, the analysis of the case laws and the legislations, along with the integration of judicial pronouncements and statutory provisions in a workable and coherent body of doctrine. The judges and the lawyers are provided with the tools which are required for reaching the decisions regarding the immense variety of problems, which is usually carried on a very limited time period and is disposed in a timely manner[7].
Unlike the doctrinal legal research, the empirical research takes more time for drawing conclusions. Kenneth Culp Davis has observed a key issue in this regard. In his view, there can be hundreds of years before a truly scientific answer to a particular question could be attained and in the meantime, there is a need to make certain judgments. Hence, the majority of needful thinking can be intuitive, unscientific and impressionistic which is based on insufficient data or inadequate observation or imagination/ wild guesses. The scientific findings are quite obviously based on the long term objective, but there are a number of good verdict which fall short in the scientific findings and yet are urgently needed, respectable and even valued[8].
Another key point in favour of the doctrinal legal researcher is that by analysing, the researchers try to test the logical consistency, coherence and the technical soundness of a doctrine or legal proposition. There is an intertwining of the legal doctrines/ principles with proper and sound reasoning which leads to the properly developed law. With regards to this, the classic testimony of doctrinal legal research is the laws of tort and the administrative laws’ evolution and development, in addition patent law. There has been a shift of 17th century law where the right of the crow was to grant the patents for different activities, included in which were inventions[9]. With the coming of the eighteenth century where there was recognition of patent law, functioning of specification in patent and processes of changes were drawn. In the 19th century, the key patent reforms were brought, where an understanding was gained on the role of competitors, patentees, and most importantly, the role of the person who were skilled in art[10]. The 20th century witnessed the policy role with regards to the test of the patentable subject matter and also described how the patent law generally dealt with the 20th century’s technological developments[11]. The evolution of patent law thus is a key example of this point.
The next benefit which is attained through the doctrinal legal method research is that it contributes to the understanding of law, the legal processes and the legal doctrines and concepts, in a better manner so as to offer logical expositions, along with the analysis of the legal systems, doctrines and laws. These evaluations help in revealing the uncertainties and the inconsistencies of the doctrines, the legal principles and the laws. Also, a scholar who is indulged in the doctrinal legal research, in a methodical manner and with proper and convincing reasoning, is able to exhibit the ambiguities, the gaps, the loopholes and the inconsistencies in the substantive law which was being studies, along with the relevant doctrines and principles which are embedded in such laws[12]. Hence, the researcher is able to invite the legislation for relative modifications through amendments, or substitution or repealing of such legislation, where the analysed defects cannot be given away by mere modification. This makes the law more effective and more purposive. There is also comparative analysis of the identifiable lawful legislations, doctrines or concepts which belong to different systems of law through the law scholars, which further allows improvements to be brought under the doctrines, legal concepts and the law[13].
Another point which favours this is that the doctrinal researchers are able to initiate a theory which relates to a particular field of law, by logical ordering and systematizing of legal propositions which emerge from the reasoning and analysis conducted by the researcher. With time, such theoretical propositions attain support from other researchers and so, this method helps in theory building. Also, through the systematic analysis, particularly for the judicial statements, helps in predicting the future concepts based on contentions and directions which are likely to be undertaken for the future[14].
In spite of the numerous benefits highlighted above, there are limitations in the doctrinal legal research method. The first one in this regard is that the doctrine or the legal principle which is under inquiry, along with the consequential projections of the researcher, becomes subjective due to the fact that a perception is exhibited in the subject matter at hand. Hence, a different perception by another ruler cannot be ruled out. So, in doctrinal method, on the basis of the analytical skills and the reasoning power of the researcher, different projections or perceptions of the same concept can be established by different scholars. Hence, different or contradicting points can be proved with equally convincing logical reasoning[15].
Apart from this, the researcher, under this method, gathers the policies from their own experience, their reflections, case reports and the authoritative statutory material. This inquiry in the concept of law does not get the support of social values or facts. And so, the research becomes a theoretical one, which is devoid of the social facts. As a result of this, the predictions and projections of the researcher are bound to be far from reality and thus, inadequate. There is a need for the law to be an effective instrument of socio-economic transformations which require the same to be seen in the light of social values. This concept is inapt under the doctrinal research method. There is a need for the contemporary social goal oriented law, which is based on the legislative study and where the extra legal factors are considered, particularly when they play a key role, whether it is positive or negative remains irrelevant, when it comes to the shaping of the law[16].
There is also a lack of the study of factors in doctrinal research method, which is out of the legal system, but which influences the operation of law in a direct or indirect manner. At times, the prejudices and the prevailing stakes of a particular dominant social group have the power of hampering the operations and the success of law. And so, there is a need for studying such extra legal factors, the prejudices and also the interests in order to understand their contribution and their role in the law making for the same to be effective. This is both inevitable and desirable for devising proper policy oriented measures and legislatures so that such matters which can end the law are sent away. There is a sole reliance over the doctrinal research method and the prominence is only given to the traditional sources of law. And many of the judgements which go unreported, the attitudes of the lower courts, the actual practices and the administrative agencies quasi judicial power are not explored[17].
When it comes to the socio-legal research methods, they too have a number of benefits and limitations. This method is also referred to as non-doctrinal legal research method where the answers are sought for a range of questions which have an impact over the social performance or the social dimension of law, and the impact over the social behaviour. Hence, socio-legal research is basically a social-auditing of law[18]. Some of the advantages of these have been stated below.
The first and foremost advantage of socio-legal research method is that through this method, the gaps between the social reality and the legislative goals are highlighted; thus, helping in presenting a true and fair picture of the law in action. Particularly, these highlight the gaps with regards to the practices of the adjudicators, the law enforcers and the regulators; and the under use or the use of law by the intended law beneficiaries. The regulatory body which is formed through the law has been given the power of enforcing and monitoring the law, as a result of certain apathies or bias towards the beneficiaries or their adversaries, which is professionally inactive in enforcement of law. The socio-legal research highlights the rationale behind making of the law which is symbolic, ineffective or less-effective. The extent to which the beneficiaries would be able to use the law is also revealed, along with the factors which discontinue them from using the same. The non-doctrinal legal research method, through empiricism, highlights the underlying factors or currents which discontinue them from attaining the law’s benefits which are bestowed on them, and also to seek the legal redressal against the ones who prevent such from happening. Hence, the bottlenecks in the law’s operation are exposed through this method[19].
The socio-legal method carries particular importance in the modern welfare states where the socio-economic transformation is envisioned through the law and so, the law is perceived as attaining socio-economic parity and justice. The social legal research assesses the role and contribution of role through empiricism for bringing the intended social results. The impact of law is assessed particularly regarding the social values, attitude and the outlook towards the changes which have been contemplated through the law which is under question. So the factors which create problems for the attainment of objective of a particular law are effectively highlighted through this research method[20].
The next advantage of this method, is an extension of the first two advantages, and this method provides expert advice, as a result of which, noteworthy feedback is given to the policy-makers and judges which helps in better interpretation, formulation and enforcement of law. It also provides an invaluable help particularly when it comes to the shaping of the legislation as per the social engineering philosophy which is followed in the modern state, and helps in making them effective instruments of the socio-economic transformation which has been planned[21].
Even though the socio-legal research has a number of advantages resulting in great potential, there are fair shares of limitations, which have to be highlighted in order to provide the right viewpoint. The very first limitation is that this method is majorly a time consuming method, apart from being a costly affair since a lot of time is spent on collecting the information from different fields. It also requires more training in employing and designing the tools of data collection, along with entailing higher commitment of energy and time for producing results which mean something, be it for the theory builders or the policy makers. This research method requires a strong base of doctrine research. So, where the researcher does not have strong doctrinal legal research, the socio-legal research becomes meaningless. And the efforts which are put into it would thus prove to be futile[22].
The next limitation of this method is that the basic tool of collection of data, particularly the observation, schedule, questionnaire and interview are not an easy task to indulge in. There is a need for specialized skill and knowledge from the very first stage, i.e., planning to the very end stage, i.e., execution. There are a number of difficulties in each of these. There is a need to have sound skill based training, for the researcher, in social science research techniques. The overall impact of this weakness is coupled with the fact that a properly trained social scientist is not able to commence social legal research as they lack the strong base of doctrinal legal research which is required, in the majority of cases. Hence, the scholars who have a strong base of legal principles and doctrinal legal research are not able to venture in socio-legal research till the time there is a proper social science research technique. So, this research method becomes almost a nightmare[23].
Another key point here is that the public opinion influences the framework and the contents of law. In the majority instances, the law attempts to change the attitude, social value and public opinion. And when such happens, it becomes difficult for a socio-legal researcher to predict the direction or course which the law needs to follow or take in a certain way, based on the sociological data. There is involvement of predictions in majority of judgments along experience and intuition of the researcher. And this would lead to the researcher going back to the doctrinal legal research[24].
From the analysis which was carried on in the previous parts, one thing becomes very clear that each of research methods, i.e., the doctrinal and the socio-legal research are two broad kinds of legal research. And when they are used in connectivity, they overcome the limitations of the other method, while retaining the advantages of both these methods. In essence, they overlap with each other, instead of being mutually exclusive. Hence, it becomes difficult to draw a pragmatic line or a sharp theoretical demarcation between the two research methods. Each method has its own advantages as the doctrinal method provides a strong theoretical background and the socio-legal method provides the present context particularly based on the perceptions of the present time. The former is proved through different researchers and the latter requires research to be undertaken on the basis of present context. The former is limited through the text becoming old and not taking into consideration the changes of time and the evolution of the already drawn contexts, whilst the latter requires a specific skill set to undertake the research, along with a strong doctrinal legal research. Thus, to bring true reforms to the law, there is a need for undertaking both these researchers, so that on the basis of the strong legal backing, new laws are drawn in the present context, to bring out a law, which has the best of both worlds.
Articles/ Books/ Journal
Azam M, Intellectual Property and Public Health in the Developing World (Open Book Publishers, 2016)
Baker J, An Introduction to English Legal History (Butterworths LexisNexis, 2002)
Banakar R and Travers M, Theory and Method in Socio-Legal Research (Bloomsbury Publishing, 2005)
Bhatia VK, and Wagner A, Diversity and Tolerance in Socio-Legal Contexts: Explorations in the Semiotics of Law (Routledge, 2016)
Blackstone W, Commentaries on the Laws of England (Callaghan, 1872)
Chakraborty D, ‘Empirical (non-Doctrinal) Research Method and It’s role in Legal Research’ (2015) 3(1) International Journal of Advances in Social Sciences, 23-28.
Cotterrell R, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Ashgate Publishing, Ltd., 2013)
Davis KC, ‘Behavioral Science and Administrative Law’ (1964) 17 Journal of Legal Education 137 at 151-52
Feenan D, Exploring the ‘Socio’ of Socio-Legal Studies (Springer, 2013)
Hoecke MV, Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Bloomsbury Publishing, 2011)
Hutchinson T and Duncan N, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 Deakin Law Review 83,
Jain SN, ‘Doctrinal and Non-Doctrinal Legal Research’, (1975) 17 Jr of Ind Law Inst 516
Knight A, and Ruddock L, Advanced Research Methods in the Built Environment (John Wiley & Sons, 2009)
McEniery B, ‘The Patentability of Non-physical Inventions: Lessons from the United States’ (2009) 35 Monash University Law Review 376
Verma SK, and Wani MA (eds), Legal Research and Methodology (Indian Law Institute, 2nd ed, 2001)
Watkins D, and Burton M, Research Methods in Law (Routledge, 2013)
Others
Banakar R, and Travers M, Introduction (2017) <https://ssrn.com/abstract=1511112>
Chynoweth P, Legal research (2017) <https://www.csas.ed.ac.uk/__data/assets/pdf_file/0005/66542/Legal_Research_Chynoweth_-_Salford_Uni..pdf>
Hutchinson T, The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law (2015) <https://www.erasmuslawreview.nl/tijdschrift/ELR/2015/3/ELR-D-15-003_006/fullscreen>
Snel MVR, Source-usage within doctrinal legal inquiry: choices, problems, and challenges (2014) <https://www.lawandmethod.nl/tijdschrift/lawandmethod/2014/06/RENM-D-13-00003/fullscreen>
Vibhute K, and Aynalem F, Legal Research Methods (2009) <https://chilot.files.wordpress.com/2011/06/legal-research-methods.pdf>
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