Legal Method
Legal Method
Legal Method
‚Legal research is the field of study concerned with the effective marshalling of
authorities that bears in a question of law‛
‚The systematic investigation of problems and matters concerned with such as codes,
acts etc. are called legal research.‛
‚Legal research is an investigation directed to the discovery of some fact; careful study
of a subject."
Keeping in view to the said definitions, we can say here that legal research is an act that
discovers the legal principles relevant to a particular problem and it is the foundation
for good legal advice.
Primary sources contain the actual law. Constitutions, court decisions, cases, statutes,
treaties and administrative regulations are all examples of primary sources.
Secondary sources are materials, which comment, explain and annotate on these
primary sources. Usually, they include treaties, legal periodical, articles, legal
encyclopaedias, annotations, law dictionaries, commentaries, continuing legal
education publications, opinions of the Attorney General, Secretary of the Ministry of
Law, Justice and Parliamentary Affairs and other agencies.
On the other hand, finding tools are reference publications, which are used to find out
primary and secondary sources. They include digests, indexes to legal periodicals, and
indexes to annotations, law dictionaries and citations.
Descriptive v. Analytic
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Descriptive research, as its name suggests, describes the state of affairs as it exists at
present. It merely describes the phenomenon or situation under study and its
characteristics. It reports only what has happened or what is happening. It, therefore,
does not go into the causes of the phenomenon or situation. The methods commonly
used in descriptive research are survey methods of all kinds, including comparative and
co-relational methods, and fact-finding inquiries of different kinds. Thus, descriptive
research cannot be used for creating a causal relationship between variables. While in
analytical research, the researcher uses his facts or information already available and
makes their analysis to make a critical evaluation of the material.
A sociologist, for example, when works with a social problem to find solution therefor
and propose, through a systematic inquiry, a solution or suggest some measures to
ameliorate the problem, his research takes the label of ‘applied’ or ‘action’ research. But
when he undertakes a study just to find out the ‘what’, ‘how’ of the social problem, his
inquiry takes the nomenclature of ‘pure’ or ‘fundamental’ research. However, the
above-mentioned ‘distinguishing factor’ between the ‘applied’ and ‘fundamental’
research need not be conceived as a ‘line’ putting the two ‘across’ the ‘line’ forever or an
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‘either-or’ dichotomy. In fact, they are not mutually exclusive. There is a constant
interplay between the two, each contributing to the other in many ways.
Quantitative v. Qualitative
Qualitative research, on the other hand, is concerned with the qualitative phenomenon,
i.e. phenomenon relating to or involving quality or kind. For example, when a
researcher is interested in investigating the reasons for, or motives behind, certain
human behaviour, say why people think or do certain things, or in investing their
attitudes towards, or opinions about, a particular subject or institution, say adultery or
judiciary, his research becomes qualitative research. Unlike quantitative research,
qualitative research relies on the reason behind various aspects of behaviour.
Conceptual v. Empirical
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DOCTRINAL RESEARCH
As the word, ‘doctrinal’ is a derivative of 'doctrine', let's begin with defining the term
'doctrine'. Dictionary Definition: Doctrine means ‚a principle, esp. a legal principle, that
is widely adhered to.‛
‚The word ‘doctrine’ is derived from the Latin ‘doctrine’ which means ‘to instruct, a
lesson, a precept’. The doctrine includes legal concepts and principles of all types –
cases, statutes, rules. The doctrine has been defined as a synthesis of rules, principles,
norms, interpretive guidelines and values. It explains, makes coherent or justifies a
segment of the law as part of a larger system of law. Doctrines can be abstract, binding
or non-binding’.‛ Based on the observation of these two definitions, we come to know
that legal doctrine consists of the body of rules associated with the legal concept or
principle that could have a long history of development.
Doctrinal research usually begins with developing a legal proposition and the entire
analysis of the data from primary and secondary authorities are focused on testing the
proposition. Say, for example, while initiating doctrinal legal research on the issues of
precedents, a legal the researcher can construct a proposition that more than two-thirds
of the precedents set by the Supreme Court lack convincing legal reasoning behind
them.
Doctrinal research has some limitations like the availability of reliable data is the
biggest challenge in conducting doctrinal research. The researcher must be competent
enough to identify the reliable data and make sure the data is of some kind of authority,
either primary or secondary. At the time when competition for limited research funds is
becoming more intense, and in which interdisciplinary work is highly valued and non-
lawyers are involved in the assessment of grant applications, lawyer-applicants who
engage in doctrinal research needs to be more open and articulate about their methods.
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Unless the researcher is much acquainted with limitations of the doctrinal method,
research outcomes could possibly be ‘too theoretical, too technical, uncritical,
conservative, trivial and without due consideration of the social, economic and political
significance of the legal process’.
There are many advantages of doctrinal legal research, which basically involves the
analysis of legal principles, concepts or doctrines, their logical ordering and
systematizing of legal propositions emerging therefrom has some practical utility. It
provides quick answers to the problem as the researcher is continuously engaged in the
exposition and analysis of legislation and case-law and the integration of statutory
provisions and judicial pronouncements into a coherent and workable body of doctrine.
A doctrinal legal researcher, through his analysis, attempts to test the logical coherence,
consistency and technical soundness of a legal proposition or doctrine.
A doctrinal legal researcher, through the logical ordering and systematizing of legal
propositions that emerged from his analysis and the reasoning, may initiate a theory in
the concerned field of law. Such a theoretical proposition, in due course of time, may
gain further support from the researcher himself or other researchers working in the
field. Through his systematic analysis of legal principles, concepts or doctrines, in the
light of judicial statements, may predict ‘future’ of the principle, concept or doctrine, its
probable ‘contents’ and ‘directions’ in which it is likely to proceed in future.
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NON-DOCTRINAL RESEARCH
The legislative processes (inquiring into the initiation and formalization of law, and the
forces, factors or pressure groups that played a significant role in its making and with
what objectives),
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it's social assimilation (involving an inquiry into its operational facets and the factors
that are responsible for making it dysfunctional), and
its impact on the intended beneficiaries (involving a post-natal study of the law).
Most of the non-doctrinal legal research, thus, seeks to assess the impact of non-legal
factors or events upon legal processes or decisions, or to find the ‘gap’ between legal
idealism and social reality, or to identify and appraise the magnitude of the variable
factors influencing the outcome of legal processes and decision-making, or to trace the
consequences of the outcome of legal decision making in terms of value gains and
deprivations for litigants, non-litigants, non-legal institutions.
There are some basic tools of data collection for socio-legal research, like the interview,
questionnaire, schedule, Interview guide, observation, participant or non-participant,
and published or unpublished materials (such as Census Reports, Reports of
Governmental and/or Non-Governmental Agencies, and appropriate literature on the
sociology of law).
The first four methods of data the collection is ‘primary sources’ of empirical data as
they are used in getting the required information ‘directly’ from the respondents. While
the last one is ‘secondary source’ of information as the researcher collects the necessary
information ‘indirectly’ from published and/or unpublished documents. Further,
‘interview’ and ‘schedule’ involve direct ‘oral communication’ between the
information-giver (respondent) and the information-seeker (investigator), while
‘questionnaire’ involves ‘written communication’ between the researcher and his
respondents. In ‘observation’, unlike in interview, schedule and questionnaire, the
researcher use his ‘eyes’, rather than ears, for collecting data. Hence, it is a ‘visual
method’ of data collection.
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the use or under-use of the law by intended beneficiaries of the law i.e.
The regulatory body, existing or created under the law, vested with the power to
monitor and enforce the law, may, due to some prejudices or apathy towards the
‘beneficiaries’ or sympathy towards their adversaries, be professionally ‘inactive’ in
enforcing the Law. Non-doctrinal legal research, in this context, highlights the ‘reasons’
behind making the law ‘symbolic’, less-effective or ineffective.
Though socio-legal research has great potentials, yet a few limitations thereof need to
mention here to put its role in the right perspective. Some of the limitations are-
Secondly, socio-legal research needs a strong base of doctrinal legal research. A legal
scholar who is weak in doctrinal legal research cannot handle non-doctrinal legal
research in a meaningful way. It may turn out to be a futile exercise leading to no
significant results.
Thirdly, the basic tools of data collection, namely interview, questionnaire, schedule
and observation, are not simple to employ. They require specialized knowledge and
skill from the stage of planning to execution.
Fourthly, invariably public opinion, as mentioned earlier, influences the contents and
framework of the law. Law, most of the times, also seeks to mould and/or change the
public opinion, social value and attitude. In such a situation, sometimes it becomes
difficult for a non-doctrinal legal researcher to, based on sociological data, predict with
certainty the ‘course’ or ‘direction’ the law needs to take or follow.
Fifthly, sometimes, because of complicated social, political and economic settings and
varied multiple factors a socio-legal the researcher may again be thrown back to his
own ideas, prejudices and feelings in furnishing solutions to certain problems.
Sixthly, Socio-legal research becomes inadequate and inapt where the problems are to
be solved and the law is to be developed from case to case (like in administrative law
and law of torts).
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CITATION
A "citation" is the way you tell your readers that certain material in your work came
from another source. It also gives your readers the information necessary to find that
source again, like information about the author, the title of the work, the name and
location of the company that published your copy of the source, the date your copy was
published, the page numbers of the material you are borrowing etc.
Thus in legal research, a legal Citation is a standardized set of guidelines that allows the
writer of legal discourse to refer to legal authorities and sources with enough clarity to
enable the reader to find or follow those references. This referencing of statements and
sources of law must be done clearly, concisely and consistently to ensure efficient and
accurate location of these resources.
CONTENT IN CITATIONS
Citation content can vary depending on the type of source and may include:
Book: author(s), book title, place of publication, publisher, date of publication, and page
number(s) if appropriate.
Journal: author(s), article title, journal-title, date of publication, and page number(s).
Newspaper: author(s), article title, name of the newspaper, section title and page
number(s) if desired, date of publication.
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Web site: author(s), article and publication title where appropriate, as well as a URL,
and a date when the site was accessed.
Play: inline citations offer part, scene, and line numbers, the latter separated by periods:
4.452 refers to the scene 4, line 452. For example, "In Eugene Onegin, Onegin rejects
Tanya when she is free to be his, and only decides he wants her when she is already
married" (Pushkin 4.452–53).
Poem: spaced slashes are normally used to indicate separate lines of a poem,
and parenthetical citations usually include the line number(s). For example: "For I must
love because I live / And life in me is what you give." (Brennan, lines 15–16).
BIBLIOGRAPHY
A bibliography is a list of all of the sources you have used (whether referenced or not)
in the process of researching your work. In general, a bibliography should include:
the names and locations of the companies that published your copies of the sources
the page numbers of your sources (if they are part of multi-source volumes)
Legal bibliography is the bibliography of law. The term has been applied to "the kinds
and functions of legal materials" and to "lists of law books and related materials".
Percy Winfield said that a "perfect legal bibliography" would be "a critical and the
historical account of every known source of the law of the state with which it assumes
to deal"
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When you are writing an essay, report, dissertation or any other form of academic
writing, your own thoughts and ideas inevitably build on those of other writers,
researchers or teachers. You must acknowledge your debt to the sources of data,
research and ideas on which you have drawn by including references to, and full details
of, these sources in your work. Referencing your work allows the reader:
-To distinguish your own ideas and findings from those you have drawn from the
work of others;
-To follow up in more detail the ideas or facts that you have referred to.
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LEGAL RESEARCH
A Legal Research is generally defined as the process of determining a legal question. As
per the Oxford Advanced Learner’s Dictionary, research is,
The very objective of research which is ‘legal’ in nature is to find an authority that will
aid the legal problem in question.[1] Thus, every research is driven by a question or a
problem which gives rise to the need of researching on this problem. It is this same
problem that determines the mode of conducting the research.[2]
Comparative approach
Taking the help of primary resources (statutes) and secondary materials (commentaries,
case laws, research paper and more)
Checking the authorities of the resources. For example making sure that any cited
judgment is not overruled.
It is these stages which makes a legal research, or any research for that matter, effective.
The most important stage in this is the identification and formulation of a research
problem which drives the entire research and molds it into a comprehensive form.
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Legal research, just like any other research, origins with a research problem. As
mentioned above, it is this same research problem, which would later be determining
the methodology of the legal research. Thus, a research problem to any legal research is
very essential and imperative. Without this, a legal research will always be incomplete
and purposeless.
While trying to seek a befitting research question, we begin from a point of not knowing
or by the drive of wanting to know more. This research question must be very basic,
open-ended and straight-forward. As correctly remarked by Frances K. Stage & Karen
Manning[3], ‚the research question as the foundation of the study, defines the research
paradigm that forms the assumption of the study, identifies the literature from which
the research emerges and to which it contributes, defines the methodology utilized and
suggests techniques to be employed throughout the research.‛
The next step is solving of the found Research Problem. This stage commences with the
identification of methodology. The methodology refers to the procedure through which
a researcher intends to gather information (primary and secondary), for the purpose of
answering the research question.
It is suggested to the researchers to develop a research proposal which would clarify the
research work which is to be undertaken. This is also known as developing a
hypothesis. A hypothesis shapes the legal research effectively and ensures that the
researcher doesn’t get lost in the endeavor of finding answer to the research problem.
Thus, a hypothesis provides a roadmap as to where the researcher should look into for
carrying on his further research.
The process of collection of data can be done in 2 major ways i.e. Quantitative
Research[4] (Doctrinal) and Qualitative Research[5] (Non-Doctrinal). For a researcher to
determine as to which one of the modes of research he should conduct for the collection
of data, there are certain factors which must be considered. These factors are:
What kind of information do you intend to collect or use for your research?
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Upon finding answers to these questions deftly, a researcher will be able to proceed
with the collection of data in the most efficient and effective manner. By adhering to
these legal research processes, the researcher benefits in the following ways:
Helps in capturing newer ideas which the researcher may come across in the process of
analysis and interpretation of data.
Apart from adhering to a structured and stepped approach, there are also certain other
ways in which a researcher can be effective while conducting a legal research. It is
important to note that there exists no exhaustive list that could be used for the purpose
of conducting a legal research effectively. However, these certain other ways or
steps[6] can also be used by a researcher in which a researcher can attempt at
conducting an effective legal research.
Firstly, the researcher should have the know-hows to use a legal research platform.
With the advent of technology, the growth and efficiency of online legal databases have
mushroomed a lot. Gone are the days, when the advocates would only rely on libraries
to get hold of precedents. With the click of mouse, one can get a thousand page
judgement skimmed and printed at comfort of home. Thus, it is very important for a
researcher to be well-equipped with the available online legal databases. This requires
knowledge and a good grasp over the methodologies to search. While some require
some certain specific search terms, the other may not. For obtaining the data effectively,
it is imperative for a researcher to narrow the search using the search terms.
Secondly, be clear on what results to expect during the process of collection of data.
Albeit, it is not possible to anticipate all the results while collecting the data but the
researcher must have some idea as to how the results could show up. In doing so, the
researcher will end up sorting out the relevant results. This consequentially saves a lot
of time for the researcher, making the research effective.
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Thirdly, the researcher must be organized. It is essential that in the process of collection
of data, whatever relevant data the researcher is able to get his hands on, must be used
in an organized manner. The data must be incorporated in the legal research that it
would appear to fall into places. If prima facie, the data seems abstract, then it means
that the data has to be well organized.
Fourthly, the researcher has to be selective. In the endeavor of collection of data for
legal research, a researcher is most likely to come across a plethora of sources. It is up to
the researcher to sort the data that s/he wishes to incorporate. However, s/he must pick
the data whose authorities are most relevant and reliable to the said legal research. For
this purpose, the researcher should pose questions like:
How well does it support the proposition you are trying to make?
Lastly, the research ought not to be rushed. For this, the researcher should plan his or
her research. In doing so, the researcher ends up with a time span which s/he has
allotted for the completion of each chapter in the research. Often, it happens that the
researcher faces roadblocks which consequentially exceeds the time limit which was set
for each chapter. Given this risk, it becomes all the more necessary to plan the research
beforehand and then move ahead with it.
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Germanic, Canonical, Feudal, and Local Practices, as well as doctrinal strains such as
natural laws, codification, and legislative positivism. Conceptually, the Romano-
Germanic legal system proceeds from abstractions, formulates general principles, and
distinguishes substantive rules from procedural rules. It holds case law to be secondary
and subordinate to statutory law. The marked feature of Romano-Germanic Systems is
that they use Codes with brief text that tends to avoid factually specific scenarios. Code
articles deal in generalities and thus, stand at odds with statutory schemes which are
often very long and very detailed. The Romano-Germanic Legal System is the most
widespread system of law in the world, in force in various forms in about 150 countries.
Language of Instruction: English (legal terms, however, are also given in Arabic and
French).
Four of the most important types of civil law deal with 1) contracts, 2) property, 3)
family relations, and 4) civil wrongs causing physical injury or injury to property (tort).
C. Contract law involves a contract, or a set of enforceable voluntary promises.
Germany's legal system is a civilian system whose highest source of law is the 1949
Basic Law for the Federal Republic of Germany (which serves as the
nation's constitution), which sets up the modern judiciary, but the law adjudicated in
court comes from the German Codes; thus, German law is primarily codal in nature.
What is Hypothesis?
Hypothesis is an assumption that is made on the basis of some evidence. This is the
initial point of any investigation that translates the research questions into a prediction.
It includes components like variables, population and the relation between the
variables. A research hypothesis is a hypothesis that is used to test the relationship
between two or more variables.
Characteristics of Hypothesis
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If the hypothesis is a relational hypothesis, then it should be stating the relationship
between variables.
The hypothesis must be specific and should have scope for conducting more tests.
The way of explanation of the hypothesis must be very simple and it should also be
understood that the simplicity of the hypothesis is not related to its significance.
Sources of Hypothesis
Observations from past studies, present-day experiences and from the competitors.
Scientific theories.
Types of Hypothesis
Simple hypothesis
Complex hypothesis
Directional hypothesis
Non-directional hypothesis
Null hypothesis
Simple Hypothesis
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Complex Hypothesis
It shows the relationship between two or more dependent variables and two or more
independent variables. Eating more vegetables and fruits leads to weight loss, glowing
skin, reduces the risk of many diseases such as heart disease, high blood pressure and
some cancers.
Directional Hypothesis
Non-directional Hypothesis
Null Hypothesis
It provides the statement which is contrary to the hypothesis. It’s a negative statement,
and there is no relationship between independent and dependent variables. The symbol
is denoted by ‚HO‛.
Examples of Hypothesis
All lilies have the same number of petals is an example of a null hypothesis.
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If a person gets 7 hours of sleep, then he will feel less fatigue than if he sleeps less.
Functions of Hypothesis
Researchers use hypothesis to put down their thoughts directing how the experiment
would take place. Following are the steps that are involved in the scientific method:
Formation of question
Creation of hypothesis
Designing an experiment
Collection of data
Result analysis
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