DOCTRINAL LEGAL RESEARCH

INTRODUCTION

Doctrinal legal research, as conceived in the legal research domain, is research ‘about’
what the prevailing state of legal doctrine, legal rule, or legal principle is. A legal
scholar undertaking doctrinal legal research, therefore, takes one or more legal
propositions, principles, rules or doctrines as a starting point and focus of his study. He
‘locates’ such a principle, rule or doctrine in statutory instrument(s), judicial
opinions thereon, discussions thereof in legal treatises, commentaries, textbooks,
encyclopedias, legal periodicals, and debates, if any, that took place at the formative
stage of such a rule, doctrine or proposition. Thereafter, he ‘reads’ them in a holistic
manner and makes an ‘analysis’ of the material as well as of the rules, doctrines and
formulates his ‘conclusions’ and writes up his study. For example, a legal researcher
interested in criminal law might start with proposition dealing with right against self-
incrimination. Research then takes place in the law library, where he will ‘locate’ the
proposition (along with its different contours) and its discussions in treatises and
textbooks on criminal law, criminal procedure, and constitutional law, encyclopedia
and leading legal periodicals. He will also try to locate all relevant judicial
pronouncements of the higher judicial institutions delved into the right against self-
incrimination. He will then ‘read’ these materials and ‘analyze’ them by applying his
power of reasoning and will, premised on analytical perspective and the material used,
draw some conclusions about the proposition. He then will write up his study. He
may, in his study advance a set of formulations, supportive or otherwise, with
convincing ‘reasoning’ about the proposition-the right against self- incrimination. He, in
his research report, may offer an alternative comprehensive paradigm of the doctrine.
With a view to drawing parallels between the doctrine or rule under inquiry, he may also
find a comparable doctrine or rule from other jurisdictions. He may, depending upon
‘objectives’ of his research, also propose a new formulation of the rule or doctrine, a
model statute or a statutory provision. He may also highlight the purpose and policy of
law that exist and may propose what it ought to be.

Doctrinal legal research, thus, involves:

(i) systematic analysis of statutory provisions and of legal principles involved

therein, or derived therefrom, and
 (ii) logical and rational ordering of the legal propositions and principles. The
researcher gives emphasis on substantive law rules, doctrines, concepts and judicial
pronouncements. He organizes his study around legal propositions and judicial
pronouncements on the legal propositions of the appellate courts, and other
conventional legal materials, such as parliamentary debates, revealing the legislative
intent, policy and history of the rule or doctrine. Classic works of legal scholars on
the law of torts and administrative law do furnish outstanding examples of doctrinal
legal research.
Doctrinal legal research, in addition to analytical one, may be historical or
comparative. Historical legal research, unlike analytical one, deals with the past. It
throws light on the past to understand the present. It explores the circumstances that led
to the adoption of the existing law. It gives a clue to the reasons why a particular
provision of law or law was framed in the form in which now it appears. It also often
reveals that a particular existing provision/law, fully justifiable at the time when it
was introduced, is no longer justifiable because the reasons/circumstances that justified
the original inclusion of that provision/law are no longer valid. While comparative legal
research, as evident from its title, involves comparative study of comparable laws or
legal institutions from different jurisdictions. It exhibits the lessons that can be learnt
from each other’s failures and achievements.

AIMS AND BASIC TOOLS OF DOCTRINAL LEGAL RESEARCH

AIMS:
Doctrinal legal research, as stressed earlier, involves rigorous analysis of statutory
provisions and judicial pronouncements thereon. The researcher organizes his study
around legal provisions, principles, concepts or doctrines and judicial statements
relating thereto, and/or reflecting thereon. He not only makes analysis of statutory
provisions and of case law, but also logically and systematically arranges the statutory
provisions and judicial pronouncements to deduce, on legal reasoning and rationale,
some legal propositions. Doctrinal legal research, thus,
(i) aims to study case law and statutory law, with a view to find law,
(ii) aims at consistency and certainty of law,
(iii) (to some extent) looks into the purpose and policy of law that exists, and
(iv) aims to study legal institutions.

Therefore, doctrinal legal research should not be undermined merely because it revolves
around statutes and judicial decisions. It immensely contributes to the continuity,
consistency and certainty of law. It also initiates further development of legal
principles and doctrines.

Doctrinal legal research mandates the legal researcher to ‘locate’ the required apt
statutory provisions and judicial reflections thereon that have bearing on the legal
doctrine, concept or rule under inquiry. Such legislative provisions and judicial
decisions constitute the basic data for a doctrinal legal researcher.

BASIC TOOLS

Where can a legal researcher find the required statutes and judicial decisions? He can
‘locate’ the requisite data in the apt statutory materials and case reports. The former
refers to, and includes in it, the relevant Acts of Parliament (along with the
amendments made thereto from time to time); secondary or subordinate legislations (in
the form of rules, regulations, orders, notifications, byelaws, and statutory orders) made
thereunder. While the latter, refers to case-reports that verbatim reproduce cases decided
by courts. Statutory material and case reports constitute primary research tools for
doctrinal legal research. However, in addition to these original sources of data, the
researcher may have to look into secondary source materials such as research articles
published in leading legal periodicals, text and reference books on the sub ject. He may
have also to refer to parliamentary debates and other Government records and reports for
getting further ‘insight’ into the legal principle, doctrine or concept under inquiry.

The basic tools of a doctrinal legal researcher, thus, are:

(i) statutory materials,

(ii) case reports,

(iii) standard textbooks and reference books,

(iv) legal periodicals,

(v) Parliamentary Debates and Government Reports, and

(vi) Micro films and CD-ROM.

These tools, depending upon the nature of information they contain, may be re-
categorized into primary and secondary sources of information. National Gazette and
Case Reports fall in the first category, while the rest fall in the latter.

(i) Statutory materials

Legislative Acts constitute one of the basic tools of doctrinal legal research. However, a
plethora of subsidiary or secondary legislation in the form of rules, regulations,
byelaws, notifications, statutory orders or directives is found in the modern national
legal system. In fact, in a contemporary legal system the quantum of executive
legislative instruments overweighs the primary ones. Further, Acts of Legislature,
with a view to coping up with the changed circumstances and/or social or political
perceptions, undergo frequent changes through amendments. Sometimes, an Act of
Parliament, when it, in the opinion of Legislature, becomes obsolete or redundant, is
replaced by another one.
Acts of Legislature as well as amendments thereto are required to publish in (National)
Gazette before they become operative. Instruments of executive legislation are also
published in the Gazette. National Gazette, therefore, constitutes an authentic primary
source of statutes and statutory provisions.

Sometimes, some law publishers publish, with short notes and requisite disclaimer,
leading and frequently referred to statutes. In some jurisdictions, almost all the
statutes, with comprehensive comments, are published in a series of volumes.

Reference to statutes and statutory provisions, invariably with analytical comments, can
also be found in standard textbooks and reference books, including ‘cases and
materials’, on the subject. However, most of the times, these publications, for obvious
reasons, do not include the latest amendments to the statutes and judicial statements
thereon. Hence, the researcher has to look for subsequent legislative changes and latest
cases on the matter under inquiry. The sole reliance on these books may lead to an
incomplete and misleading research. Further, textbooks as well as reference books,
owing limitation of space, cover a broad area in the compressed form. Therefore,
some ideas may be left with some cursory remarks by the authors.

Nevertheless, a researcher working on a relatively new theme is advisable to start with the
textbooks, reference books, and ‘cases and materials’ on the subject. It will also enable
him to acquaint himself with and understand the basic principles and dimensions of
the theme or the subject under investigation. It will also help him to find several other
pertinent sources of study and decided cases, with comments, on the subject.
Sometimes, the researcher may have also to look into the debates that took place on
floor of the House on the draft statute when it was in the making. Reading of
Parliamentary Debates will enable him to get acquainted with the underlying
legislative policy of the statute. It will also reveal the different alternatives suggested on
the floor of the House and the reasons for their acceptance or rejection in the final
version of the statute. Such an acquaintance will undoubtedly lead to a well- reasoned in-
depth analysis of the statute. It may also be of worth exercise for a doctrinal legal
researcher to look for (and to have peep therein) a pre-& post-legislative Reports on the
statutes under inquiry. A peep into these reports will divulge different underlying
legislative currents and paradigms and thereby will enable him to have deeper insight into
the legislative and operational facets of the statute(s)/statutory provision(s) under
consideration. Further, a look into Parliamentary Debates and Government Records
may exhibit some hidden or new dimensions of the doctrine or legal principle under
investigation.

(ii) Case reports

In almost all the common law legal systems, judicial decisions of higher courts are
published in Case Reports.71 A doctrinal legal researcher, therefore, has to look for the apt
Case Reports for laying his hands on the required judicial pronouncements for his
analysis.

In addition, in these jurisdictions one finds a numbe r of well-articulated case digests. Case
Digests, which refer to all the reported cases, play a significant role in collecting cases on a
particular subject/topic. They undeniably assist the researcher in ‘locating’ relevant
judicial decisions and grasping quickly the legal principles laid down therein. As
mentioned earlier, textbooks and reference books on the subject contain cases on the
statute(s) and statutory provision(s) under inquiry. But the case law dealt under these
books may not be comprehensive and up-to-date. Authors of the textbooks and reference
books may omit cases not considered relevant by them.
Almost all the legal periodicals published from common law countries invariably
devote some of their pages for ‘Case Comments’ wherein comments by experts on
leading cases are published. Some periodicals also contain a segment on ‘Notes on
Cases’ wherein brief but pertinent comments on, and/or summary of, contemporary
leading judicial decisions are published. A careful look at these pages will help the
researcher in identifying apt cases that deserve his serious attention and analysis in his
research.
Further, Annual Survey, publishing a summary of the most important cases and
outlining the consequential development in different branches of law, may also be a
significant tool for finding cases on the identified statutes or statutory provisions. In
such a survey, an expert of repute in the field, not only identifies significant judicial
decisions rendered in the field during the year under survey but also makes their
analysis with a view to finding the way in which they have followed or deviated from the
past judicial dicta and judicial reasons given therefor. Based on such analysis, he also
sketches the development, progressive or otherwise, of the law in the field during the
year under survey and predicts future course of development.

(ii) Legal periodicals

It may also be necessary for a doctrinal legal researcher to know what others have said
and found in the area of his research. Therefore, he is required to look into research
articles published in legal periodicals of repute. Research articles published on the
topic/theme of inquiry are of immense help for a doctrinal legal researcher. A reading of
these articles not only unconsciously inspires him to pursue his inquiry with vigor but
also helps him in crystallizing his ideas that are still imprecise. These articles may
expose him to some new dimensions or aspects of the problem, which he has not been so
far able to conceive. It may also help him in assuring himself that he has not missed
anything pertinent from original sources. Further, he may unconsciously learn the ways
of effective persuasion and presentation of his inquiry. To put simply, it becomes
necessary for a legal scholar to know what other researchers have said on the topic to:
(i) seek inspiration, (ii) crystallize his ideas, (iii) organize his thoughts, and (iv) ensure
that he has not missed any original sources. Hence, legal periodicals become
indispensable tools of doctrinal legal research.

However, he may come across a number of legal periodicals with an umpteen number of
research articles written by scholars of repute in the field. Some times, he may feel,
rightly so, that it is impossible for him to go even through the Table of Contents of
these legal periodicals (with numerous issues thereof) to ‘locate’ research articles that
are ‘relevant’. He may carry a feeling of reluctantly sinking, forever, in these
voluminous legal periodicals.

However, there are a good number of indexes published by commercial organizations

and academic and professional bodies that help him in ‘locating’ research articles with
comparatively lesser efforts and time. Some of the acclaimed and widely used indexes for
locating articles are:
Index to Legal Periodicals- The Index is prepared and published since 1908 by the
American Association of Law Libraries, New York. It indexes various legal
periodicals published in the United States, Canada, Great Britain, Northern Ireland,
Australia, and New Zealand. Articles are indexed ‘subject-wise’ as well as ‘author-
wise’. Index to Foreign Legal Periodicals- The index is prepared and published since
1960 by the Institute of Advanced Legal Studies of the University of London, London, in
co-operation with the American Association of Law Libraries, New York. It is
published in three quarterly parts covering the contents of legal literature received over
the period October to June and it is followed by an annual volume cumulating the first
three parts. It indexes articles published in legal periodicals published from countries
other than the United States, Great Britain, and the countries of the British
Commonwealth whose systems of law have a common law basis. It thus complements
and, to a limited extent, duplicates the Index to Legal Periodicals. It gives ‘subject
index’, ‘author index’ and ‘book reviews’. It also gives a ‘geographical index’ giving
by country, subject and headings used for article mainly concerned with laws of a
country or countries.
1. Index to Periodical Articles Related to Law- This index commenced in 1958.
It is compiled by the librarians of the Yale and Columbia Law Schools. It
has coverage of selective articles published in English throughout the world,
which were not covered by Index to Legal Periodicals and Index to
Foreign Legal Periodicals.
2. Index to Indian Legal Periodicals- It is a half- yearly publication of the
Indian Law Institute, New Delhi. Its publication started in 1963. It
indexes articles (subject-wise and author-wise) published in leading legal
periodicals published in India including Yearbooks and other annual
publication pertaining to law. It also indexes case comments and book
reviews published in these periodicals.
3. Legal Journals Index- The publication started in 1986 from the UK. It
indexes research articles published in legal periodicals published from
almost all the common law countries.
In addition to these Indexes, a few legal periodicals bring out their own Cumulative
Index (of a certain period). Such a Cumulative Index lists articles, author-wise as well
as subject-wise, published in different issues of the periodical. It also gives index of
cases refereed to, and books reviewed therein. It helps a legal scholar to locate
relevant articles published over the years in the legal periodical.

Bibliographies on certain subjects are also available to a legal researcher. Such

bibliographies also help him in locating research articles, books, and reports on the
subject of his inquiry.

However, a researcher may find an umpteen number of articles published in different

periodicals that deal with or touch upon same, similar or identical themes expositing
him, in a way, to repetitive ideas pertaining to, and explanations of an identical theme,
concept or doctrine. In such a situation, he, with a view to saving his time and energy
without compromising with the need to know ‘comments’ or ‘view points’ of others on
the subject of his inquiry, will have to opt for a few leading articles written by
authors of eminence in the field. A fairly trained researcher will be able to easily
identify such articles by merely looking at the title or reading abstract or conclusion of
the research papers and professional standing of the journal carrying them.

A legal researcher may also gather comments on the statutes/statutory provisions and
cases thereon from standard textbooks and reference books on the subject. However,
there is basic advantage of an article over a textbook and reference book. A research
paper, unlike a textbook or reference book, deals with a specific issue(s) in depth.

ADVANTAGES AND LIMITATIONS OF DOCTRINAL LEGAL RESEARCH

ADVANTAGES:
Doctrinal legal research has a number of advantages to its credit. A few pertinent
among them are outlined here below. First, doctrinal legal research, which basically
involves 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.
It provides lawyers, judges and others with the tools needed to reach decisions on an
immense variety of problems, usually with very limited time at disposal. Empirical
research, unlike doctrinal legal research, takes much more time to draw conclusions. In
this connection, the following observation of Kenneth Culp Davis deserves our
attention. He observed:

“It may be a hundred or several hundred years before we get

truly scientific answers to some of the questions I am trying to
explore, and we need to make some judgments in the meantime.
Some of the most useful thinking can be unscientific,
impressionistic, intuitive based on inadequate observation or
insufficient data or wild guesses or imagination. Scientific
findings are obviously the long term objective, but a good many
judgments which fall far short of scientific findings are valuable,
respectable and urgently needed.”
Secondly, a doctrinal legal researcher, through his analysis, attempts to test the
logical coherence, consistency and technical soundness of a legal proposition or
doctrine. His knitting of legal principles or doctrines, with sound reasoning, may
lead to a well- developed law. In this context, evolution and development of law
of torts and of administrative law, for example, stand as classic testimony of
doctrinal legal research. Thirdly, doctrinal legal research contributes in our
‘understanding’ of ‘law’, legal concept or doctrine, and legal processes in a better
way as it offers logical exposition and analysis of such a law or a doctrine or legal
system. Such an analysis also reveals (in)consistency in, and (un)certainty of, the
law, legal principles or doctrines.

Fourthly, a scholar of law indulged in doctrinal legal research, in a systematic

way and with convincing reasoning, exhibits ‘inbuilt’ ‘loopholes’, ‘gaps’,
‘ambiguities’ or ‘inconsistencies’ in the substantive law inquired into as well as in
some of principles or doctrines embodied therein. He thereby invites the Legislature
to plug them through amendments (or to repeal it or substitute it by another piece of
legislation if it is with full of defects or a proved ‘failure’) so that the law can be
more purposive and effective. Such a legislative move, either leading to amending
the law or replacing it by another one, results in the development or
improvement of the law. Further, a comparative analysis of identical legal rules,
concepts or doctrines from different systems of law by a scholar of law gives a
further impetus to improvement of the law, legal concept or doctrine, as the case may
be.

Fifthly, a doctrinal legal researcher, through logical ordering and systematizing

of legal propositions that emerged from his analysis and 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. In other words, doctrinal legal research helps in theory building.

Sixthly, a doctrinal legal researcher, 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 proceed in future.

Seventhly, doctrinal legal research provides a sound basis for non-doctrinal legal
research. Socio- legal research requires a strong base of doctrinal legal research.
 Before a scholar of law embarks upon non-doctrinal research, it is necessary for him
to acquire sufficient grounding and experience in doctrinal legal research. Unless
he understands the legal doctrines, case law and legal institutions, he can hardly
venture into socio- legal research. In the absence of strong base in doctrinal legal
research, non-doctrinal research is bound to be a futile and infructuous exercise. The
utility of non-doctrinal research very much depends upon the ability of the legal
scholar to translate his findings and data into legal doctrines and concepts. Upendra
Baxi, in his
monograph captioned ‘Socio-Legal Research in India: A Programschrift,78 observes,
and rightly so, that ‘law-society research cannot thrive on a weak infra-structure base
of doctrinal type analyses of the authoritative legal materials’. ‘Legal and policy
studies of the state of law’, he further observes, ‘provide not merely an assurance of
sound understanding, but may also hold promise of needed starting-points for
sociological research.’ The reason is obvious. It will be difficult for a legal
researcher to venture into highlighting, through empirical research, operational
dimensions of law and legal institutions, the bottlenecks in their implementation
and suggesting solutions to overcome these defects without having in-depth
knowledge of the legal doctrines, case law and legal institutions. Further, such
knowledge is essential for identifying ‘issues’, ‘delimiting areas’ of his inquiry,
formulating apt ‘hypothesis’ for inquiry, and devising appropriate strategies and
tools for collecting relevant data. In the absence of these, the sociological
resea rch will be like a boat without a rudder and a compass, left in the open
sea. The whole exercise of the researcher will be fruitless.

LIMITATIONS:

Doctrinal legal research, in spite of the above- mentioned strengths, suffers from
certain limitations worth noting. They are:
First, analysis of the legal principle, doctrine under inquiry, in particular, and of ‘law’ in
general, and the consequential projections of the doctrinal researcher, ultimately,
become ‘subjective’ and exhibit his ‘perception’ about the inquired subject matter. A
different perception of the same legal principle, concept, doctrine, or law by another
scholar(s) of law, therefore, cannot be ruled out. In other words, doctrinal legal
research, depending upon the reasoning power and analytical skills of the researcher,
may lead to different ‘perceptions’ and ‘projections’ of the same legal fact, concept or
doctrine when different scholars of law analyze it. Thus, different scholars may
perceive a legal fact or doctrine differently with equally convincing logical reasoning.
Secondly, a doctrinal legal researcher gathers the policy from his own experience,
authoritative statutory materials, case reports, and his reflections thereon. His ‘inquiry’
into a legal principle or concept or law, therefore, does not get any support from social
facts or values. His research, undeniably, becomes merely theoretical and devoid of any
social facts. Consequently, his ‘projections’ of law and ‘predictions’ regarding changes
in the law are bound to be far from social reality and inadequate.
When law is viewed as an effective instrument of socio-economic transformation, it
becomes necessary to see it (law) in the light of social facts and values. It also needs to
be studied and analyzed in terms of its actual working and consequences and not as it
stands in the book. Obviously, doctrinal legal research, in this context, becomes
inadequate and inept. Further, contemporary social-goal-oriented law requires pre-
legislative study to know and appreciate the extra-legal factors that have played a
significant role, positive or negative, in shaping the legal rule or doctrine in the
present form. Doctrinal legal research, by its nature, does not bring such pre-legislative
issues in its ambit. It is also not fully equipped for such a study.
Thirdly, doctrinal legal research does not involve a study of the factors that lie outside
law or legal system but have directly or indirectly influenced the operation of the law, a
legal rule, concept, or doctrine. Sometimes the prevailing stakes and prejudices of a
dominant social group may hamper the law’s operation and success. A study of such
extra-legal factors, interests, and prejudices, therefore, becomes necessary for
understanding their role and contribution in making the law or doctrine effective, less
effective, or ineffective in its operation. Such a study also becomes desirable, rather
inevitable, to devise appropriate legislative or policy-oriented measures to do away
with the factors that are desisting/have desisted the law to be effective or to minimize
their adverse effects on the law’s performance. Doctrinal legal research practically
overlooks the need to study these factors.
Fourthly, a doctrinal legal researcher puts his sole reliance on and gives prominence to,
traditional sources of law and judicial pronouncements of appellate courts. The actual
practice and attitude of lower courts and of administrative agencies with quasi-judicial
powers, whose judgments remain unreported, are left unexplored in doctrinal legal
research.

A comparative look at the advantages and limitations of doctrinal legal research

outlined in the preceding paragraphs may create serious doubt about t h e utility and
relevance of doctrinal legal research. However, doctrinal legal research should not be
undermined simply because it, through analysis of statutory provisions and cases,
revolves around legal principles and doctrines, and it is, therefore, devoid of ‘social
facts’ or is far away from ‘social reality. Doctrinal legal research, contrary to this
general belief, is in fact involves consideration of social value, social policy, and the
social utility of law. A scholar of law observed:
Conventional legal materials contain a lot of data with which a doctrinal legal
researcher may make a significant contribution to our understanding of legal
processes. The basic need is for a conception of research that, even if it is confined to
traditional legal materials, ask the most meaningful questions that such materials may
help answer. A doctrinal legal researcher, through careful content analysis, qualitative and
quantitative, of case reports and other conventional legal source materials, can, inter
alia, identify the processes through which a doctrine is formed, the values preferred
and articulated thereunder, and its underlying policy and goal. Conventional legal
materials are also of some help in tracing the actual consequences adopting a doctrine.
 NON-DOCTRINAL LEGAL RESEARCH OR SOCIO-
LEGAL RESEARCH

INTRODUCTION

However, in the recent past, doctrinal legal research has received a severe jolt due to
change in the political philosophy of law from the laissez-faire to the welfare state
envisaging socio-economic transformation through law and legal institutions, the
consequential new substantive and functional facets of law, and certain compelling
pragmatic considerations arising from this metamorphosis.
Prominent reasons and arguments stressing the need for inquiry into social facets of
law are:
First, the emergence of sociological jurisprudence and its underlying philosophy
assigned ‘law’ the task of ‘social engineering’. Almost every modern civilized
State perceives ‘law’ as an active instrument of socio-economic justice and thereby a
vehicle of social engineering. This new operational facet of law has inevitably led to
enactment of enormous statutes with specified socio-economic drives. In fact, we
have come to live in an age is of social welfare laws.
Secondly, in the light of such a role assigned to law, it is argued, it becomes necessary
to look into the ‘factors’ or ‘interests’ of the Legislature that play significant role in
setting the legislative process in motion and in identifying the beneficiaries thereof
and the reasons therefor. These ‘factors’ and ‘interests’ (for putting law in motion
for the desired planned socio-economic change), indicate, rather dictate, ‘framework’
of the law as well reveal the choices opted by the Legislature when it faced with
alternative ‘paths’ towards, or ‘strategies’ for, the intended legislative goal.
Thirdly, it becomes necessary to carry out frequent attitudinal studies of those
whose legal position is sought to be modified by a given law as well as of those
who are vested with the power of interpreting and implementing it so that the
Legislature, armed with this feedback, can fulfill its job in a more satisfactory
manner.
Fourthly, a number of facts or factors that lie outside a legal system may be
responsible for non- implementation or poor implementation of a given piece of
social legislation. A systematic probe into these factors and their influence on the
operation of law, therefore, becomes necessary to identify these bottlenecks and to
design appropriate strategy to remove them or to minimize their influence on the law
so that the law can be made an effective instrument of socio-economic
transformation. Fifthly, there is nearly always a certain ‘gap’ between actual social
behavior and the behavior demanded by the legal norm and certain ‘tension’
between actual behavior and legally desired behavior. Identification of the ‘gap’
and ‘tension’, as well as factors responsible, therefore becomes necessary for
strengthening potentials of law as a vehicle for socio-economic justice.
It is, thus, stressed that an investigation into, through empirical data, the operational
 facets of law intending to change or mould human attitudes and to bring some socio-
economic transformation in society is more important than analyzing law as it
exists in the book. Such an inquiry ostensibly involves research into link between law
and other behavioral sciences. Here, t h e emphasis is not on legal concepts or
doctrines but on people, social values, and social institutions. It gives importance to
economic and social data rather than legal facts. It concerns with the impact of the
legal process upon people, their values, and institutions. Such research prominently
involves an inquiry into the dynamics of law, its social contents, role, and impact of
law in the social system.

AIMS AND BASIC TOOLS OF NON-DOCTRINAL LEGAL RESEARCH

AIMS:

In a non-dorinal legal research, the researcher tries to investigate through empirical

data how law and legal institutions affect or mould human attitudes and what impact
on society they create. He endeavors to look into ‘social face or dimension’ of law
and ‘gap’, if any, between ‘legal idea lism’ and ‘social reality’. Non-doctrinal legal
research, thus, involves study of ‘social impact’ of law (existing or proposed) or of
‘social-auditing of law’. The researcher tries primarily to seek, among other things,
answers to:
(i) Are laws and legal institutions serving the needs of society?
(ii) Are they suited to the society in which they are operating?
(iii) What forces in society have influenced shaping or re-shaping a particular set of
laws or legal norms?
(iv) Are laws properly administered and enforced or do they exist only in statute
books?
(v) What are the factors, if any, responsible for poor or non-implementation of the
laws?
(vi) What are the factors that influenced the adjudicators (courts or administrative
agencies) in interpreting and administrating the laws?
( v i i ) For whose benefit a law is enacted, and are they using it? Have the intended
‘legislative targets’ benefited from the law? If not, for what reasons? Where
do ‘bottlenecks’ lie?
(viii) What has been impact of the law or legal institutions in changing attitude of the
people or molding their behavior? and what are the social obstacles in realization of
the expected behavior or change?

The inquiry, in ultimate analysis, relates to: (i) the legislative processes (inquiring into the
initiation and formalization of law, and the forces, factors or pressure groups that played
significant role in its making and with what objectives), (ii) its social assimilation
(involving an inquiry into its operational facets and the factors that are responsible for
making it dysfunctional), and (iii) its impact on the intended beneficiaries (involving a
post-natal study of the law). Most of non-doctrinal legal research, thus, seeks: (i) to assess
the impact of non-legal factors or events upon legal processes or decisions, or (ii) to find
the ‘gap’ between legal idealism and social reality, or (iii) to identify and appraise the
magnitude of the variable factors influencing the outcome of legal processes and decisions-
making, or (iv) 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.

A legal researcher undertaking non-doctrinal legal research takes either some aspects of
law or the people and institutions supposedly regulated by law as the focus of his study.
Such a research undertaking, compared to doctrinal legal research, is much broader and
the questions involved therein for further inquiry are more numerous, the answers of which
are not ordinarily available in conventional legal sources-statutory materials, case reports
and legal periodicals. The researcher is usually required to undertake fieldwork to collect
data for seeking answers to these questions.
However, legal doctrines do not altogether become irrelevant in a non-doctrinal legal
research. They may be included in a non-doctrinal legal study, but if so, they are
treated simply as one of the many variables that may influence decisions, or affect the
practices and attitudes of people, or affect the operation of institutions. In a non-
doctrinal legal research intending to assess the impact of non- legal factors or events upon
legal processes or decisions, legal doctrines may appear either as a response to non- legal
events or as a factor conditioning the impact of non- legal events. If research is aimed at
identifying and appraising factors influencing outcomes, legal doctrine becomes relevant,
if at all, simple as one of such factors.
The distinguishing characteristics of a non-doctrinal legal research, thus, are:
(i) it lays down a different and lesser emphasis upon legal doctrines and concepts,
(ii) it seeks answers to a variety of broader questions,
(iii) it is not anchored exclusively to appellate case reports and other traditional le
gal sources for its data, and
(iv) it invariably involves the use of research perspectives, research designs,
conceptual frameworks, skills, and training not peculiar to law trained personnel.

To put it differently, non-doctrinal legal research aims at highlighting the ‘gaps’ that exist
between the ‘law-in-the statute book’ (that is, the image of law projected in the books) and
‘law- in-action’ (that is, the perception it exhibits in reality), and impact of law on the
social behavior. The former discloses s the gap between legal idealism and social reality
and thereby it highlights the disjunction that exists between the law- in- the books and the
law- in-action. While the latter, highlights the factors that are thwarting the operation of
law and thereby diminishing the attainment of its goal. It helps us to find out the
deficiencies in an enactment and the problem of its implementation. And its impact on
the society.

Basic tools:

There are several ways of collecting empirical data for social- legal research. The
required information can be collected from the identified respondents in a face-to- face
interaction by administrating them a set pre-determined questions or through sketchy
questions prepared by the respondent. These methods of data collection are known as
‘interview’ and ‘schedule’ respectively. The pre-determined questions can also be
administered to the respondents indirectly through post, fax, emails or any other
appropriate methods of communication. This method of data collection is known as
‘questionnaire’. A socio- legal researcher can also collect the required information by
systematic ‘observation’ of a phenomenon, behavior of his respondents or institutions have
much in common. In both the forms of data collection, the wordings of the questions
are the same for all the respondents.
However, at the same time there are two prominent differences betwee n the two. First,
questionnaire is usually mailed to the respondents for filling in their responses to the
questions listed therein, whereas schedule is referred to a form filled in by the interviewer
during his personal interview with the respondent. Secondly, questionnaire, due to its
impersonal nature, is rigid, whereas schedule, which like in interview allows the
investigator to clarify questions, if they are not clear to the respondent, is more flexible.

There is yet another related tool of data collection, which is popularly known as
interview guide. It contains only the topic or broad headings on which the questions are to
be asked to the respondents. The researcher formulates questions on these topics on the
spot and records the responses thereto. Interview guide is generally used in case of
qualitative or in-depth interviews.

Observation, which involves a visual method of data collection, becomes a scientific

method of data collection if it, in the context of subject-matter of inquiry, is planned
systemically, recorded systematically, and is subjected to checks and controls on
validity and reliability. Observation may be participant or non-participant. In the
former, the investigator mingles with the respondents to observe and record a phenomenon.
While in the latter, he observes and records a phenomenon from distance.

Published or unpublished documents/reports may also serve as useful sources of

information requisite for a socio-legal research. However, the investigator needs to
carefully scrutinize the information and to ensure himself about reliability and adequacy of
the data before he uses the information in his inquiry.

ADVANTAGES AND LIMITATIONS OF NON-DOCTRINAL LEGAL RESEARCH

ADVANTAGES:

Non-doctrinal legal research, as mentioned earlier, seeks answers to a variety of questions

that have bearing on the social-dimension or social-performance of law and its ‘impact’ on
the social behavior. In fact, it concerns with ‘social-auditing of law’. Hence, socio- legal
research has a number of advantages. A few prominent among them are:

First, social- legal research highlights the ‘gaps’ between ‘legislative goals’ and ‘social
reality’ and thereby ‘depicts’ a ‘true picture’ of ‘law- in-action’. It particularly highlights
the ‘gap’ in relation to

(a) the practice of law enforcers, regulators and adjudicators and

(b) the use or under-use of the law by intended beneficiaries of the law.
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. It may, for certain reasons, purposefully fail to enforce it effectively.
Non-doctrinal legal research, in this context, highlights the ‘reasons’ behind making the
law ‘symbolic’, less-effective or ineffective. It also reveals the extent to which the
beneficiaries have been (or have not been) able to ‘use’ the law and the ‘reasons’ or
‘factors’ that have desisted/are desisting them from using it. Through empiricism, non-
doctrinal legal research highlights the underlying currents or factors (like unawareness on
part of the beneficiaries, unaffordable cost in seeking the legal redress, or the fear of further
victimization if the legal redress is pursued, and the like) that have been desisting them from
seeking the benefits that the law intended to bestow on them and to seek legal redress
against those who prevent them from doing so. It, thus, exposes the ‘bottlenecks’ in
operation of law.
Secondly, non-doctrinal legal research carries significance in the modern welfare state,
which envisages socio-economic transformation through law and thereby perceives law
as a means of achieving socio-economic justice and parity. Through empiricism, socio-
legal research assesses ‘role and contribution of law’ in bringing the intended social
consequences. It also helps us in assessing ‘impact of law’ on the social values, outlook,
and attitude towards the ‘change(s)’ contemplated by law under inquiry. It highlights
the ‘factors’ that have been creating ‘impediments’ or posing ‘problems’ for the law in
attaining its ‘goal(s)’.

Thirdly, in continuity of what has been said in firstly and secondly above, non-
doctrinal legal research provides an ‘expert advice’ and gives significant feedback to the
policy- makers, Legislature, and Judges for better formulation, enforcement and
interpretation of the law.

Fourthly, socio- legal research renders an invaluable help in ‘shaping’ social legislations
in tune with the ‘social engineering’ philosophy of the modern state and in ‘making’ them
more effective instruments of the planned socio-economic transformation.

LIMITATIONS

Though socio-legal research has great potentials, yet a few limitations thereof need to
mention here to put its role in the right perspective. A few significant are outlined below.

First, non-doctrinal legal research is extremely time consuming and costly as it

requires a lot of time for collecting the required information from field. Further, it calls
for additional training in designing and employing tools of data collection and entails
greater commitments of time and energy to produce meaningful results, either for policy-
makers or theory-builders.
Secondly, socio- legal research, as explained earlier, 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. Each one of them is bridled with a number of
difficulties. A researcher has to have a sound skill-oriented training in social science
research techniques. A cumulative effect of this limitation of non- doctrinal legal
research and of the one mentioned in secondly is that a well-trained social scientist
cannot undertake socio- legal research without having a strong base in doctrinal legal
research. Similarly, a scholar of law, though having a strong base in legal principles,
concepts or doctrines as well as in doctrinal legal research, cannot venture into non-
doctrinal legal research unless he has adequate training in social science research
techniques. In either case, non-doctrinal legal research becomes a mere nightmare for
both of them. A way out, therefore, seems to be an inter- disciplinary approach in
investigating legal problems. However, inter-disciplinary legal research has its own
difficulties and limitations.
Fourthly, invariably public opinion, as mentioned earlier, influences conte nts and
framework of 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, on the basis of sociological data, predict with
certainty the ‘course’ or ‘direction’ the law needs to take or follow. Such a prediction
involves the maturity of judgment, intuition, and experience of the researcher. He may
fall back to doctrinal legal research. Nevertheless, sociologica l research may be of some
informal value to the decision- makers.

Fifthly, sometimes, because of complicated social, political and economic settings and
varied multiple factors a socio- legal 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).
May be due to some of these limitations of socio- legal research, coupled with some other
non-conducive situations for non-doctrinal legal research, scholars of law and legal
academia, in the past, have not contributed significantly to non-doctrinal legal research. In
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fact, they have, due to different professional priorities, not ventured into socio- legal
research. Future trend seems to be equally bleak. They are not well-trained in the
techniques and nuances of socio- legal research. This lack of training has made them to be
away from non-doctrinal legal research and developed a somewhat professionally
unfavorable climate for socio- legal research. Further, law schools and legal academia lack
the aptitude for, and tradition of, sustaining non-doctrinal legal research. However, in the
recent past, most of the law schools in Asia and Africa have introduced a course on
research methodology at both under-graduate and post-graduate studies of law to induce
and train their inmates for undertaking doctrinal as well as non-doctrinal legal research with
vigor.

Doctrinal
legal research, for a variety of reasons, plausibly including the inability and
inaptitude of legal scholars to undertake socio-legal research, has been (and is still)
prominent in the field of law. Since its evolution, law has been viewed as a science of
norms and a ‘closed discipline’. Hence, scholars of law have been endeavoring to look
into normative character of ‘law’ and the ‘principles’ involved therein through analysis of
‘statutory’ law. Most of the conventional Law Schools have been (and are) engaged in
training their inmates about the techniques of ‘finding law’ and of ‘reading principles’
involved therein. Hence, scholars of law have been engaging themselves in writing classic
treatises by carefully looking into ‘law’ and ‘legal principles’ and organizing them in a
systematic manner. They have been producing works that are designed for practitioners’-
lawyers and judges- reference. One finds classic treatises that have carefully organized and
analyzed the doctrinal contents of a field of law in abundance. Another equally significant
reason for making doctrinal legal research more prominent in the field of law is the
historical and traditional influence of analytical positivism on law and lasting influence
of overseas (American and British) legal training of academia, lawyers and judges.
Analytical positivism has obsessed the thinking of Bar, Bench and academicians to such
an extent that no other approach (other than doctrinal one) to the understanding of the
nature and purpose of law could really have thrived. This kind of concern tended to
identify ‘law’ and ‘a legal order’ only with those elements which are statable in the form of
legal propositions.

Further, modern legal systems, particularly from common law system, provide ample
scope for judicial creativity. As our experience tells, statutory language can never be
perfect. Certain ambiguities, gaps and inconsistencies, advertent or inadvertent, are bound
to exist in legal phraseology. A word used in a statute, which may appear to be fairly clear
at the time of enactment of the statute, may acquire vagueness when the occasion of its
application to a case by the court arises. Similarly, the plain statutory language may lose
its plainness at the time of actual controversy because of the human limitation to
foresee all the difficulties and nuances of the problem. Therefore, Legislature, most of the
times, deliberately vests judiciary with certain judicial discretion to meet the ends of
‘justice’. Judiciary, as and when called upon, to interpret statutes has through judicial
process evolved certain standards, legal ‘principles’, ‘doctrines’ and ‘concepts’ that
attracted attention of scholars of law and of law teachers trained ‘overseas’ to make
analysis of these principles, concepts and doctrines.

INTER-RELATION BETWEEN DOCTRINAL AND NON-DOCTRINAL LEGAL RES EARCH:

These two broad types of legal research- doctrinal legal research and non-doctrinal legal
research- are overlapping rather than mutually exclusive. It is difficult to draw a sharp
theoretical or pragmatic line of differentiation between the two.
The distinction between doctrinal and non-doctrinal legal research, if there be one, is one
of emphasis. In doctrinal legal research the main objective is to clarify the law, to take a
position, to give reasons when the law is in conflict, and, perhaps, to suggest methods for
improving the law. It involves the identification of ‘fact’, its underlying policy, and
‘measures’ for improvement. While non-doctrinal legal research gives emphasis on
understanding ‘social dimension’ or ‘social facet’ of law and its ‘impact’ on the ‘social
attitude’. It gives emphasis on ‘social auditing of law’. In doctrinal legal research legal
materials, such as statutes, regulations, and cases, are used, whereas in non-doctrinal legal
research, materials from other fields, like sociology, are sought and used.
Doctrinal legal research and non-doctrinal legal research, thus, are not mutually exclusive.
They compliment each other. Non-doctrinal legal research cannot supplant doctrinal legal
research. It can be a valuable supplement or adjunct to doctrinal legal research. It is now
accepted that theoretical research without any empirical content is hollow and that
empirical work without supporting theory is shallow.
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