Legal Research and steps on legal research

Introduction

Research is the careful search and enquiry for the verification of a fresh theory and for supplementing the existing theories by new knowledge. Legal Research is the endeavour by honest dispassionate, scientific, critical and principles, taking into account the legislative, executive and judicial law making and decision making process with a view to assess how far the legal process serve the social needs, and how it can be made more useful and effective for the public good.

Legal research is an integral part of learning and practicing the profession of law. It is therefore indispensable for every law student, lawyer, Judge and academician. In variable degrees they have to be engaged in research to find out principles of different occasions. For example, a lawyer has to convince the Judge that his proposition is more sound and correct than that of his adversary. Since law practically covers every aspect of human life in the rapidly growing complexities of modern society, legal research assumes an extremely prominent role of law reforms. Therefore it is to be undertaken as a part of the process of law reform with a definite end. It should make suggestions for improvements in the existing law in clear, specific and easily identifiable manner. It should formulate precise proposals. The researcher should keep this approach in mind throughout the whole process of legal research as its major governing factor.

Legal Research is of different kinds.

  1. Doctrinal Legal Research

The characteristic features of Doctrinal Legal Research are the following:-

  • The researcher starts the research on the basis of a legal proposition.
  • The principal sources of data are the conventional legal materials readily and easily available and accessible in law libraries.

Doctrinal Legal Research is the research organized around any legal proposition. One who undertakes Doctrinal Legal Research starts with a legal proposition in the particular subject in which he is interested. The study is based upon the conventional legal materials easily and readily available and accessible. These materials include statutes, texts, law reports, treaties, encyclopedias, legal periodicals etc. Conventional legal materials contain a lot of data. With the help of these, one may make valuable contributions to legal processes.  Doctrinal legal research requires careful content analysis of the conventional legal source materials.

This process should explain and involve the following components:-

  • Aim of the Doctrine
  • Value of the Doctrine
  • Present Problems
  • Alternative courses if any
  • Choice of action and courses
  • Creation of the doctrine
  • Operative values
  • Models
  • Consequences

After studying the conventional legal source materials, the researcher formulates his conclusions and makes the report. The report gives the origin, growth, present position and the future predictions of the legal propositions.

Doctrinal legal research involves analysis, arranging, ordering and systematising the elements of legal propositions and the study of legal institutions through legal reasoning or rational deduction. In the modern times Doctrinal research is to be concerned with considerations of social value, social policy and the social utility of law and legal institutions. Doctrinal research has the practical purpose of providing lawyers and judges with the required legal principles and the correct exposition of the legal propositions to arrive at decisions on an immense variety of problems.

Thus the object and utility of Doctrinal research become to be the improvement of the contents, structure and functioning of law and legal institution aimed at social welfare.

  • Non Doctrinal Legal research

The characteristic features of non Doctrinal Legal Research are the following:-

  • The non Doctrinal legal research does not start with any legal proposition as in the case of Doctrinal legal research.
  • The starting point or the basis of the non Doctrinal legal research is a legal problem
  • The solution of the legal problem is to be found at the end of the research and as the result of the research.
  • In addition to the solution for the main legal problem non Doctrinal legal research is apt to give answers to many broader questions also.
  • Non Doctrinal legal research does not depend upon the traditional legal source materials only, but extents to other sources also including field work for the purpose of collection of data.
  • Since the process of collection of data includes fieldwork, it involves the concepts, perspectives, skills and training not peculiar to person trained in law.

Non Doctrinal legal research is the research organized around either some aspect of the legal decision process, or the people and institutions regulated by law. Here, the approach is much broader than that of the Doctrinal research. The data necessary to attempt an answer is not ordinarily available in conventional legal sources. Therefore field work is usually required.

Non Doctrinal legal research is mostly concerned with the enquiries in the following matters.

  • Impact of non legal events.
    • Magnitude of the factors influencing the legal decisions.
    • Consequences of legal decisions in terms of value for litigants, non litigants and non legal institutions.

In non doctrinal legal research the enquiry involves broader and more numerous questions than those of the Doctrinal legal research. It is not exclusively based upon the traditional legal sources for its data. It may also involve the concepts, perspectives, skills and training not peculiar to law-trained personnel.

  • Empirical legal research

Empirical legal research is based upon experiments and observations. It is the scientific method of arriving at the inference of the principle after the process covering and comprising a combination of reasoning with observation, and discovery with justification. It is the acquisition of fresh scientific knowledge of the principles. The knowledge is the product of the process of systematic intellectual enquiry, understanding and scientific solution of socio legal problems. Empirical research involves the procedure of collecting, analyzing and presenting data for the justification of the propositions. The research problem belongs mainly to the realm of reasoning. Empirical research helps in detecting the deficiencies in enactments and the problems of their implementation. It also explains a) the type of law to be enacted  b) factors causing delay and other evils in the administration of justice and c) problems of uncertainty caused by the contradictory interpretations of the same principle.

  • Mono disciplinary legal research

Mono disciplinary legal research is one in which the major discipline involved is only law or its sub divisions. It does not take into account any other allied subject of social science. With the help of legal materials, the researcher explains the relevant judicial concepts. This process involves analysis of statutory provisions and judicial dicta. This leads to the formulation of principles arranged in some logical order. It helps to identify problems likely to arise in future for decisions, indicating how the principles can be applied to solve problems. The results of the research are meant for members related to law and the legal profession.

  • Trans-disciplinary or multi disciplinary legal research or socio legal research

Trans-disciplinary legal research is one which extends into the fields of other social sciences. So it is also called the Multi-disciplinary Legal Research or Socio-legal Research. In the growing complexity of modern society no discipline can be an insular one. So, law also. Each legal rule is concerned with its application to a factual situation of life. So all intellectual disciplines are connected with law. This affinity of law with other disciplines necessitates the researcher for the extension of investigation beyond “law” into other disciplines. This facilitates to bring out the wider implications of legal rules suggestive of more meaningful policies. Tran-disciplinary legal research depends upon the depth of knowledge of the researcher both in law and in allied fields. The legal issues are discussed in the light of knowledge in the allied disciplines. Socio-legal research is Tran-disciplinary research. It extends into the fields of social sciences. Knowledge of law can be complete only with knowledge of other allied social sciences. This knowledge can be used to develop the study of legal problems and their solutions.

  • Participatory Legal Research

In participatory legal research, the researcher participates in the activities of the group or community under observation. The main object of this approach is to provide certain direct benefit to the community. The researcher generates an awareness on the members of the community under observation, as to their relative position, capacity, power, strength and weaknesses. During this process such relative position of the oppressed majority can be made use of for their benefit. Thus participatory legal research has its ideological advantages.

  • Non-participatory Legal Research

In non-participatory legal research the observer does not actually participate in the activities of the community or group under observation. It is really very difficult to keep oneself away from the community and observe it. It creates discomfort on both sides namely, on the side of the observer and on the side of the community. Thus a non-participatory approach has it’s own difficulty in its process. A non-participatory observation may often become a quasi-participatory observation. This is because of the particular method adopted by the researcher. In such method, the observer, which actively participates in respect of some of the common activities, remains only as an observer in respect of other activities.

In non-participatory research, the researcher being the observer remains detached without any prejudices and maintains impartiality. This increases his respectability and helps him to get cooperation from the members of the community, who will be ready to supply the required information. The researcher will be smooth touching every aspect of the subject matter of enquiry.

  • Predictive Legal Research

Predictive research method is concerned with the prediction of the future of the society. The possibility of predictability is based upon the uniformity, regularity and constancy of relationships among past experiences, present tendencies and future aspirations in actual social life. The predictions may not be absolutely accurate because of the possible intervention of unforeseen events, scientific developments and the like. Yet it may give some knowledge about the future of the society so that the future may be controlled, or the people can fashion their conduct in accordance with the scientific expectations of the future of the society.

  • Fundamental Legal Research

Fundamental legal research is concerned with the essential basic and radical principles governing the new circumstances of the changing society. Such an enquiry and research are necessary to solve new problems in the society. Social phenomenon is dynamic in nature. It undergoes rapid changes. There are consequential and corresponding changes affected in the requirements of the society also. The old and existing principles will not be sufficient to meet with the present situation of the society. So it is necessary that the old principles should be verified and tested to ascertain its adequacy, inadequacy, retention, alteration, addition or other changes as the case may be, in the light of the new and changed circumstances. The enquiry of the research is directed in this way, which give rise to new principles which are fundamental in character.

  1. Applied Legal Research

Applied legal research aims at the practical utility of the legal principles obtained as a result of the research. This approach is more sociological in character than the fundamental approach in the sense that applied legal research tries to find out solutions for the legal problems facing the present society. It attempts to ascertain the probabilities, possibilities and opportunities for the utilization of the legal principles to the welfare of the society. The principles arrived at by fundamental research should have its benefits for the wellbeing of the members of the society. Applied legal research has many characteristics similar to those of the non Doctrinal legal research. The emphasis of the applied legal research is on the utility of the doctrine. The researcher tries to find out answers to broader and numerous significant questions. The enquiry doesn’t star with any legal proposition, but is directed to find out proper solution for the legal problems closely connected to the existing social realities and therefore conventional and traditional legal source materials are not sufficient, but field work is also necessary.

  1. Comparative Legal Research

Comparative legal research affords the opportunity to compare and evaluate the utility of legal principles existing in different legal systems and to adopt and introduce the suitable principles to a particular legal system. Comparative law itself is only a method of study, and not any department or branch of law.

Comparative legal research has the utility of increasing and encouraging development of law. It may provide remedies and solutions for legal problems. It gives a variety of legal principles applicable to similar circumstances and thus provide opportunity for the law making authority to select and adopt the most suitable principles. In this way, comparative legal research affords the possibility of introducing new and useful ideas in a legal system.

Steps on Legal Research

Legal research consists of the following steps:-

  • Identification of the problem
  • Designing project proposals
  • Evolving methodologies
  • Collection of data
  • Analysis of data
  • Writing research reports.
  • Identification of Problem

A research problem is the actual proposition, topic, question or subject matter of the research. Identification of problem is the first and the most important step in research. The selection of an appropriate research problem requires serious attention and considerable patience. Problems selected from research literature such as research books, research journals and reports, from the lists of problems suggested by the research supervisor or guide are all external sources. On such selection, there is no subjective element. It is only the exercise of a choice of a problem prepared by others. In identifying problem, the subjective element is essential and important. It must come from one’s own thought and intellectual suffering experience, which is the source of creative ideas. Identification of problem should involve one’s own genuine intellectual involvement. Research of such an identified problem will be certainly better in quality than that chosen from any other external sources. The problem should be one which promotes the present theoretical knowledge. At the same time, it should have practical relevance too.

Identification of problem has many facets. They include :-

  1. feasibility of the study
  2. importance of the problem
  3. Library facilities
  4. Time to complete and
  5. Sustenance of the interest
  • Designing Project Proposals.

The term “project proposal” is a formalized version of a “synopsis” which is the statement of a we formulated research problems. After identifying the problem, the researcher is required to submit a project proposal. While designing project proposal, the researcher should have a clear idea about the problem, a suitable population for the study and setting down the sampling procedures. Relating to data, the researcher should devise necessary tools and techniques for its gathering, determine the mode of study, set the arrangements for their editing, coding and processing and indicate the procedures and the statistical indices for their analysis. He should also have a clear idea about the mode of presentation of the research report.

There are two possible approaches in designing project proposals according to the nature of research viz.,  a) inductive method and b) deductive method.

Inductive method is the direct and natural investigation of the empirical social problems. The researcher establishes a close acquaintance and relationship with the areas of study. Deductive method is arriving at conclusions from premises. The conclusions follow logically from the assumptions. Deductive method commences with the adoption of a proposition or hypothesis derived in a prior assumption.

Designing project proposal is the specification of the direction of inquiry. It should cover and comprise the scope, perspective and focus of the research. It consists of

  1. Framing the title
    1. Formulating research issues and
    1. Application of the concepts
  • Evolving Methodologies

Research methodology refers to the methods, techniques and tools necessary to be employed for the legal research. It comprises the findings, analysis, ordering, systematising and studying the facts and law predicting legal trends. The researcher has to collect all the informations relevant to the problem. He may adopt the following approaches to the study

  1. Analytical approach
  2. Historical approach
  3. Ethical approach
  4. Statistical approach
  5. Critical approach
  • Collection of data

Data denotes facts based on concrete and empirical observations leading to inferences. The fundamental idea of scientific legal research is the ascertainment of the basis for accepting or rejecting something as a fact. Scientific information is founded on reliable and valid observations.

  • Analysis of data

Analysis of data is the orderly splitting of the facts into its various elements to find out answers to the different questions involved in the research problem.  It should be made with reference to the research problem, aiming at the purpose of the study with a view to form the basis of the theory and its generalization. Analysis of data involves its classification, tabulation and interpretation.

  • Writing Research Reports

A research report is the detailed description of the entire research work. The researcher has to present the research findings in the form of a report conveying the whole result of the study in sufficient details. Much of the report writing depends upon the topic, extent of the materials, techniques, insight and imagination of the researcher. The exposition should be simple, clear, precise, appropriate and accurate with logical, unbiased presentation of facts and results. The expression shall be in ideal language and pleasing style. There shall not be any ambiguity, inconsistency or omission. The report shall be arranged in distinct parts, chapters, headings, sub headings and paragraphs according to the contexts and contents. Foot notes should be given for references to quotations, citations and clarifications.

Conclusion

Legal research mainly aims at the identification of legal norms to regulate indeterminate varieties of human relations. A researcher in law should firstly possess the sound knowledge of the present law. This is to be acquired through legal method. It is an  essential prerequisite for legal research. Legal research may be either Doctrinal or non Doctrinal or a perfect combination of the two. The researcher can dispense with the one and adopt the other. The technique is distinctive enabling one to make a systematic research. It provides the tool to arrive at decisions on immense variety of problems.

Reference

  1. Legal Drafting, conveyancing, professional ethics and Advocacy, Prof. K.Mony and K. Usha, 9th edition, Usha publications, 1996

Aishwarya Says:

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