Legal Research Methodology
MEANING OF LEGAL RESEARCH
‘Legal research’ means research in that branch of knowledge which deals with the principles of law and legal institution. Contents of various sources of law change with the changing requirement of the society and if these changes are not taken into account in interpreting law, the existing law is bound to be doomed. Therefore the aim of law is to regulate human behaviour in present day and legal research must be directed to study of relationship between the world of law and the world that the law purports to govern.
The objective of legal research is to find out the area where there is need of law. For e.g. patent and copy right act and cyber law.
- Where there is law but there are lacunaes in existing laws, in those areas legal researcher can help in finding suitable measures to eliminate them.
- Legal research tries to explore fundamental traits of human nature so as to make the world aware of it and ultimately destroy the evils.
VARIOUS PROCESSES FOR OBTAINING OBJECTIVES
- EVOLUTIVE – how a thing in apresent context comes, this we can only know by applying theory of evolution. Historical fact are important in this kind of research.
- EXPLICATIVE – a process which tries to ascertain the nature, scope and source of law in order to explain what law is explicative in nature. For e.g. laws relating to FEMA etc.
- IDENTIFICATORY – to identify the beneficiaries because of enacting of certain legal rules is what we call identificatory process.
- COLLATIVE – a process which tries to find out the effect of existing law, in relation to other existing law.
- PROJECTIVE – a process which tries to find out the degree of acceptance of proposed policy from the society i.e. how people are reacting.
- IMPACT ANALYSIS – what is the impact of an eshtablished or newly formed legal principle, rule or institution.
KINDS OF LEGAL RESEARCH
DOCTRINAL RESEARCH –
A research based on analysis of case laws, statutes by applying logic and resoning power. This kind of research is carried on by all judges, lawyers and law teachers. As per Cardozo “law or legal propositions are not final or absolute. They are in state of becoming. Accepted norms or principles whether statutory or as a principle of justice, equity and good conscience are applied again and again to test its veracity or authenticity as a true principle of law. If it is found unjust, it may be modified to meet present requirement. For e.g. AK Gopan case is overruled by Bank Nationalisation and finally in Maneka Gandhi case by the Honourable Supreme Court, Sajjan Singh and Sampath Kumar cases are overruled in Golaknath case by saying that parliament has no power to amend basic structure of constitution.
In these cases judges played the role of researcher by giving concrete shape and stability to legal principles by applying principles of review, revision or overruling. A person who is doing doctrinal research should and must know how to make use of law library because research is concerned with identification of authoritative sources and using techniques to find them.
CHARACTERISTICS OF DOCTRINAL RESEARCH
- Propositions based study.
- Conventional legal theory and court decisions report are sources for research.
- It studies law as it is existing.
ADVANTAGES OF DOCTRINAL RESEARCH
- Provides researchers with necessary tools to reach their destination within a limited time frame.
- Ultra vires and many other concepts can be improved by doctrinal research.
- Provides proper guidance when question related to course by law is raised.
DEFECTS OF DOCTRINAL RESEARCH
- Over emphasis on appeallate court decisions.
- If researcher fails to take into account the reference and context of legislation, precedent and custom, his work may not be worthy.
- Lack of social factors will not complete the study as law has to be related with society.
- A researcher faces problem in giving shape to his work because of too many presumptions made by materials at his disposal.
NON DOCTRINAL RESEARCH
Unlike doctrinal research, this research is carried on by collecting or gathering information by first hand study of the subject. It believes on experience or observation without due regard to any theory or system and that is why it is called experimental type of research. Researcher tries to investigate effect or impact by observing functions of law and legal institutions in society. In such a research, the researcher first of all accepts a working hypothesis and then collect enough facts to prove or disprove his hypothesis. He then sets up experimental designs so as to bring forth the desired information. In this process the researcher has to control the variables affecting the conclusion. This kind of research is useful when proof is sought that certain variables affect the others in certain way.
Hence it can be said that non doctrinal research though of much value, it is not of universal application and doctrinal research cannot be ignored for non doctrinal research.
- It lays a different and lesser emphasis on doctrine
- Seeks to answer broader and numerous questions
- Not anchored particularly to appeallate reports and other legal resource for its data
- May involve use of research perspectives, research designs etc.
- It is time consuming and costly and calls for additional training
- Needs a strong base of doctrinal research
- Extremely weak in solving problems in hand
- Cannot give a direction to course of law to be useful
- Cannot remain unaffected from human human vices, upbringing and thinking
- Law students should be trained to undertake effective research work
- Students should be competent enough to study legal materials in systematic manner
- Should be able to establish relationship between law and society
- Legal persons are involved in dispensation of justice, legal profession and teaching
- These persons do not see much scope in non doctrinal research
- Law teachers do not engage in this research as it involves heavy financial expenditure
- Legal researchers are not trained in taking up these type of researches.
RESEARCHER SHOULD HAVE REQUISITE LEGAL KNOWLEDGE
Legal knowledge includes definition of law; how it comes into existence; what is the significance of various expressions used in codified act; ways of interpretation. If it is uncodified i.e. either customary or precedent , then how it is to be interpreted; extent of relevancy, how to use a law library etc.
Intern at Law Portal
College: Vivekananda Institute of Professional Studies, GGSIPU
Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, GGSIPU, Law Student