Legal Research and Research Methodology at My LAWMAN Notes


INTRODUCTION
George III is reputed to have said that lawyers do not much more law than other people, but they know better where to find it.[1] Law does not operate in vacuum. It has to reflect social values, attitudes and behaviour. Societal values and norms, directly or indirectly, influence law. Law also endeavours to mould and control these values, attitudes and behavioural patterns so that they flow in a proper channel. It attempts either to support the social system or to change the prevalent social situation or relationship by its formal processes.
All collective human life is directly or indirectly shaped by law. Law is, like knowledge, an essential and all pervasive fact of the social condition. No area of life-whether it is the family or the religious community, scientific research is the internal network of political parties-can find a lasting social order that is not based on law. A minimum amount of legal orientation is indispensable everywhere.[2]
Such a complex nature of law and its operation require systematic approach to the understanding of ‘Law’ and its operational facets. In this backdrop it seems logical to understand the Research Techniques and Methods. Oxford Advanced Learner’s Dictionary defines Research as a careful study of a subject, especially in order to discover new facts or information about it.[3] Karl Pearson says There is no short-cut to the truth; no way to gain knowledge of the universe except through the gateway of scientific method.[4] Hence a good research should be Systematic and Logical.[5]
In such situations, legal research becomes necessary: (i) for ascertainment of law on a given topic or subject, (ii) to highlight ambiguities and inbuilt weaknesses of law, (iii) to critically examine legal provisions, principles or doctrines with a view to see consistency, coherence and stability of law and its underlying policy, (iv) to undertake social audit of law with a view to highlighting its pre-legislative ‘forces’ and post-legislative ‘impacts’, and (v) to make suggestions for improvements in, and development of, law.
Generally Legal researchers do make systematic research into facts of social, political and economic conditions which give rise to the individual rules, acts or codes. They also examine the socio-legal and other effects of those acts or rules. Judges, Lawyers, Law commission and researchers constantly do research in Law.

 QUALITIES OF A RESEARCHER
A scholar of law, having the requisite aptitude and skill, interested in legal research, may do any of the following things:[6]

1. Analyze a legal doctrine, rule, principle or concept to see whether it matches with the thitherto judicial statements and to suggest new set of statements or words if the existing ones, in his opinion, do not match. While doing so, he can highlight ambiguities in the doctrine or gaps prevalent therein and state, with rationale and reasons, what are the correct propositions of law that need to apply. For suggesting correct propositions, he may rely upon the underlying policy of the

2. Write a kind of survey on the recent developments in law summarizing the most important cases, analyzing how they have followed, or deviated from, the past cases, and make a guess as to what the courts would do in future.


3.2              SPECIFIC QUALITIES of a good legal Researcher can be explained as follows:

1.Trained in using a Law Library: A law library contains highly specialised materials, and this requires special skill to handle.[7] A good Legal Research is always a product of utilising maximum available resources in a law library. The various sources of information categorised may be primary, secondary or tertiary.[8] A researcher should know where National Gazette, which publishes Acts/Proclamations, passed by Parliament (and by State Legislature) Rules, Regulations, Statutory Orders, and Directives of Administrative Agencies, and case reports that publish judicial pronouncements of different higher courts are arranged. All these sources contain rich original information/observations about the identified research problem. They are indeed indispensable for any legal researcher.
 The secondary sources include textbooks, treatises, and commentaries on statutes, abstracts, bibliographies, dictionaries, encyclopedias, indexes, reviews, and thesaurus. And directories that   provide list of journals, digests, subject guides and telephone directory covers under Tertiary sources.
 2. Unbiased Attitude: When a phenomenon is observed in its true form without being affected by the observer’s own views, it may be termed as “objective observation”.[9] Mrs. P V Young says,
“A scientist avoids personal and emotional interpretation of data. He is not a debater taking issue with a side. He maintains an open mind and tests his finding and assumptions. He looks for the facts which would substitute and give theory a new meaning and vitality”.[10]
 So a researcher must suppress his values and conduct value- free socio-legal research. He should not have pre-conceptions about the subject matter under study. Robert Bierstedt states,
“Objectivity means that the conclusions arrived at as the result of inquiry and investigation are independent of the race, colour, creed, occupation, nationality, religion, moral preference, and political predisposition of the investigator. If his research is truly objective, it is independent of any subjective elements; any personal desires that he may have.”[11]
3. A Man Of diverse literary knowledge: Law is an instrument of social ordering. Development of society depends on philosophical values, scientific and technological advancement, commercial and economic activities, political process and hence a researcher must be compatible with all these developments so that he can amalgamate the knowledge in research. A good researcher always keeps his eyes on various available literatures like book reviews, news paper articles, magazines, current issues of law reporters and journals etc.
Researcher should not be confined to books, articles, treaties, statutes and cases, but if necessary, experts should out in the realms of law and related fields of government for their experience. So a man must at all times have a plan around which he can arrange his material.
4. Systematic research:  Undertaking and executing as a systematic inquiry, is a complex process. It involves a three-stage process. Each one of them warrants a particular skill in researcher. The processes are research planning, research implementation, and presenting of research findings.
Research planning requires the necessary sub-skills in a legal researcher for: fact collection, legal analysis, legal knowledge, problem identification, legal analysis, fact analysis, further fact collection, identification of avenues of research, and generation of key words. Research implementation, as the second-stage processes, involves the skills pertaining to: identification of problems for resolution, identification of relevant research source materials, location of the source materials, effective use of the source materials, analysis of research findings, application of findings to the identified problems, and identification of further problems. While the third-stage process, i.e. presentation of research findings, requires the qualities necessary for: identification of the research recipients’ needs, selection of appropriate format or framework, use of clear and succinct language, and use of appropriate language-style informatory, advisory or recommendatory.[12]
The study of research methodology gives the researcher the necessary training in gathering material and arranging them. They may be presented in a flowchart as under[13]:-
Identification and Formulation of a Research Problem

↓Review of Literature↓Formulation of a Hypothesis ↓Research Design↓Collection of Data↓Analysis of Data↓Interpretation of Data↓Research Report

These stages are not mutually exclusive. They overlap continuously rather than following the prescribed sequence strictly. The order sketched above is meant to provide a procedural guideline to researcher.  And then he can participate in the field work when required for data collection like, sampling, survey, observation, questionnaires, and interviewing etc. It enables to make intelligent decisions concerning problems and provides tool to look at things objectively.
5. Researcher should know the logic of induction and deduction:[14] Inductive reasoning utilizes specific relevant details in order to arrive at a general truth. It is the method of the scientific researcher, who must collect sufficient data from experiments to arrive at a generalization based upon these data.
Deduction is the opposite of Induction, when we reason from an accepted truth, such as a legal doctrine, we use deduction. The syllogism is perhaps the best form of deduction. Described by Aristotle, it is a three step construction consisting of a major premise, a minor premise, and a conclusion.
The major premise is a general presumption accepted as true, e.g. - a legal principle. The minor premise identifies the item under consideration as within the class described by the major premise, e.g. - a fact situation and then follows that the minor premise should be governed by the same reasoning that governs the major premise. The classic example bears repeating:
Major premise: All men are mortal (class is described).
Minor premise: Socrates is a man (individual under consideration belongs to class described).
Conclusion: Socrates is mortal (major premise applies to individual).
6. Effective Legal Writing: It is the language which one uses to show the reader where you are taking him. Researcher should develop one point at a time; his thought should appear to focus on a single analysis until it is complete rather than seeming to dash about in many directions.
In Legal writing, particularly, the natural and orderly connection between researcher ideas ought to be obvious means there should be coherency. Each sentence should proceed logically from the previous sentence and logically precede the sentence that follows. Each paragraph should flow naturally from its predecessor, with no ideas repeated or omitted.
7. Selection of research problem:[15] The research problem undertaken for study must be carefully selected. Subject where plethora of research work has been done should not be normally chosen. A good legal researcher always chooses the subject of contemporary relevance to throw new light. The subject or the problem selected must involve the researcher and must have an upper most place in his mind so that he may undertake all pains needed for the study.
And other things while selecting the subject he does:-
  1. (a)    avoids too narrow or too vague problems,
  2. (b)   select familiar and feasible subject,
  3. (c)    Consider importance of the subject, the costs involved and the time factor etc.

8. Time management: It is a challenge to complete a legal research on allotted times. Hence a researcher should know how he can manage and to cope up with this the role of computer is significant for completion of project on time. Without using on line Databases it is difficult to research manually because it takes a lot of extra times. So a researcher must have sufficient knowledge of basic computer programmes.
9. Control over budget: Money may be constraint for researcher because there are several online journals and publications which is accessible only after subscription. It is better to use public library where all recourses are available and also important to free access websites likes Legal information institute of India (LII of INDIA),[16]  various courts  judgement information system,[17] different ministries websites like Press Information Bureau, PRS legislative research, Planning commission and several other International Organisation’s websites like UNO, UNICEF, ICJ etc.

GENERAL QUALITIES that are needed for any researcher are as follows[18]
1.      Scientific attitude: According to Allyn A. Young, a scientific attitude means the ability to raise significant questions and to formulate fruitful hypothesis. Successful research calls for industry and command of the appropriate technical methods.

2.      Imagination and insight: A researcher must possess high degree of imaginative power. He should be able to grasp and visualise the each aspects of society.

3.      Preservance: He requires unlimited patience and inexhaustible Preservance. He must be able to work patiently and continuously over long periods even when the possibility of near success is not there to encourage him.

4.      Clarity of thinking: It is attained by having a thorough and clear knowledge of the subject under study

5.      A high grasping power: He possesses high power of grasping the significant things quickly and reacts in proper time.

RESEARCH METHODS VIS-A-VIS RESEARCH METHODOLOGY
The term ‘research methods’ refers to all those methods and techniques that are used by a researcher in conducting his research. The term, thus, refers to the methods, techniques or tools employed by a researcher for collecting and processing of data, establishing the relationship between the data and unknown facts, and evaluating the accuracy of the results obtained. Sometimes, it is used to designate the concepts and procedures employed in the analysis of data, howsoever collected, to arrive at conclusion. In other words, ‘research methods’ are the ‘tools and techniques’ in a ‘tool box’ that can be used for collection of data (or for gathering evidence) and analysis thereof. ‘Research methods’ therefore, can be put into the following three groups:
1. The methods which are concerned with the collection of data, when the data already available are not sufficient to arrive at the required solution.   
2. The statistical techniques which are used for establishing relationships between the data and the unknowns.
3. The methods which are used to evaluate the accuracy of the results obtained.

RESEARCH METHODOLOGY
The term ‘research methodology’, on the other hand, refers to a ‘way to systematically solve’ the research problem. It may be understood as a ‘science of studying how research is done scientifically’. It involves a study of various steps and methods that a researcher needs generally to adopt in his investigation of a research problem along with the logic behind them. It is a study of not only of methods but also of explanation and justification for using certain research methods and of the methods themselves. It includes in it the philosophy and practice of the whole research process. In other words, research methodology is a set of rules of procedures about the way of conducting research. It includes in it not just a compilation of various research methods but also the rules for their application in a given situation and validity for the research problem at hand.

A researcher, therefore, is required to know not only the research methods or techniques but also the methodology, as he needs to decide as well as to understand the relevancy and efficacy of the research methods in pursuing the research problem at hand. He may be confronted with equally relevant and efficacious alternative research methods and techniques at each stage of his research study. He, therefore, has to consciously resort to the research methods and techniques that are most appropriate to carry his investigation in a more systematic manner. This becomes possible only when he is acquainted with the underlying assumptions and utility of various research methods or techniques available to him. A study of research methodology equips him with this kind of knowledge and skill. C R Kothari, bringing out the correlation between research methods and research methodology, observed:

  DIFFERNCES
Research methodology has many dimensions and research methods do constitute a part of the research methodology. The scope of research methodology is wider than that of research methods. Thus, when we talk of research methodology we not only talk of the research methods but also consider the logic behind the methods we use in the context of our research study and explain why we are using a particular method or technique and why we are not using others so that research results are capable of being evaluated either by the researcher himself or by others. Why a research study has been undertaken, how the research problem has been identified, in what way and why the hypothesis has been formulated, what data have been collected and what particular method has been adopted, why particular technique of analyzing data has been used and a host of similar other questions are usually answered when we talk of research methodology concerning a research problem or study.[19]

 ADVANTAGES
A study of research methodology has the following advantages: 
1. It inculcates in a researcher the ability to formulate his research problem in an intelligent manner.
2. It inculcates in him objectivity in perceiving his research problem and seeking solutions there for.
3. It equips him to carry out his research undertaking in an efficient manner and in a better way.
4. It enables him to take rational decisions at every step of his research.
5. It enables him to design appropriate research techniques and to use it in an intelligent and efficient.
6. It enhances his ability to analyze and interpret data with reasonable objectivity and confidence.
7. It enhances ability of the researcher and others to evaluate research findings objectively and use the research results in a confident way.
8. It entails a good research.
9. It enables him to find a satisfactory way of acquiring new knowledge.

IMPORTANCE 
Importance of knowing ‘research methodology’ or ‘the way of doing research’ is well articulated by C R Kothari as follows: In fact, importance of knowing the methodology of research or how research is done stems from the following considerations:
(i)The knowledge of methodology provides good training specially to the new research worker and enables him to do better research. It helps him to develop disciplined thinking or ‘bent of mind’ to observe the field objectively.
(ii) Knowledge of how to do research will inculcate the ability to evaluate and use research results with reasonable confidence.
(iii) When one knows how research is done, then one may have the satisfaction of acquiring a new intellectual tool which can become a way of looking at the world and of judging every day experience. Accordingly, it enables us to make intelligent decisions concerning problems facing us in practical life at different points of time. Thus, the knowledge of research methodology provides tools to look at things objectively.
(iv)The knowledge of methodology helps the consumer of research results to evaluate them and enables him to take rational decisions.[20]

CONCLUSION
The orientation in research methodology has been aimed at  familiarization of  researchers with researching of  legal  materials - Acts of Parliament/Statutes/Proclamations, decisions  of  High and Supreme  Courts, case digests, writings of  legal scholars,  indexes, rules of  interpretation of statutes, and  the art of distinguishing and  finding  the  ratio decidendi  of a  case. A  legal  researcher,  therefore,  needs  to  identify  and  understand  the  distinct characteristics  of  his  legal  research  for  employing  an  ‘appropriate’  research methodology.
If the research problem is a part of, and on par with, social sciences, the legal researcher has obviously to use and apply the methodology known to social sciences. And if it has its own distinct characteristics, he has to use different methodology. In other words, if his ‘discovery’  involves  rigorous  analysis  and  creative  synthesis  of  different  legal doctrines,  concepts  or  principles,  and  evaluation  of  legal  doctrines  or  law,  or extraction of some  legal principles  from  given plethora of  legal  materials,  he  has to resort  to a  methodology dominant with analytical skills and blended with deduction and induction of such an analysis.




[1] Glanvilie Williams, Learning the Law 173 (Universal Law Publishing co., Delhi, 11th  edn., 2009).
[2]  Khushal Vibhute & Fillipos Aynalem, Legal Research Methods 3 (Justice and Legal System Research Institute, 2009).
[3] A S Hornby, Oxford Advanced Learner’s Dictionary of Current English 1290 (Oxford University Press, New York, 7th  edn., 2005)
[4]Supra note 2 at 14.
[5] P Sarvanavel, Research Methodology 5 ( Kitab Mahal, Allahabad, 12th  edn., 2001)
[6] Supra note 2 at 44.
[7] S k Verma and M Afzal Wani (eds.), Legal Research And Methodology 241 ( ILI, Delhi, 2nd edn., 2001)
[8] Supra note 2 at 47.
[9] S R Myneni, Legal Research Methodology 18 ( Allahabad Law Agency, Faridabad, 4th edn., 2010)
[10] Id at 38.
[11] Id at 21.
[12] Supra note 2 at 51.
[13] Ibid 52.
[14]Gertrude Block, Effective Legal writing 82 (The Foundation Press, New York,  2nd  edn., 1983).
[15] Supra note 2 at 25.
[16] Graham Greenleaf, Ranbir Singh et. al., “Challenges for free access to law in multi jurisdictional developing countries: Building the Legal Information Institute of India.” 1 Journal of NLU Delhi 81 (2013).
[17] Ibid 73.
[18] Supra note 9 at 38.
[19] C R Kothari, Research Methodology: Methods and Techniques 10 (New Age International, Delhi, 2nd ed.2004)
[20] Ibid .

Mr. Rupesh Chandra Madhav is LL.M. candidate of Indian Law Institute, New Delhi. He is doing his dissertation work on Information Privacy. He can be reached at: rupesh.andi11@gmail.com.