[Law Notes] Legal Research: Types and Techniques by Jai Keshwani


MEANING OF LEGAL RESEARCH
 “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 and Secondary Sources
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.

TYPES OF LEGAL RESEARCH

Descriptive v. Analytic
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.

Applied v. Fundamental Research 
Applied research or action research aims at finding a solution for an immediate problem. Here the researcher sees his research in a practical context. While in fundamental research or pure research or basic research, the researcher is mainly concerned with generalization and with the formulation of a theory. He undertakes research only to derive some increased knowledge in a field of his inquiry. He is least bothered about its practical context or utility. Research studies concerning human behavior carried on to make generalizations about human behavior fall in the category of fundamental or pure research. But if the research (about human behaviour) is carried out to solve a problem (related to human behaviour), it falls in the domain of applied or action research. The central aim of applied research is to discover a solution for some pressing practical problem, while that of fundamental research is to find additional information about a phenomenon and thereby to add to the existing body of scientific knowledge. The ‘applied’ scientist thus works within a set of certain values and norms to which he feels committed. 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 ‘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
Quantitative research is based on the measurement of quantity or amount. It applies to a phenomenon that can be expressed in terms of quantity. It is a systematic scientific investigation of quantitative properties of a phenomenon and their inter-relation. The objective of quantitative research is to develop and employ mathematical models, theories and hypotheses about the phenomenon under inquiry. The process of measurement, thus, is central to quantitative research because it provides a fundamental connection between empirical observation and mathematical expression of quantitative relationship. 
Qualitative research, on the other hand, is concerned with 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
Conceptual research is related to some abstract idea(s) or theory. It is generally used by philosophers and thinkers to develop new concepts or to re-interpret the existing ones. On the other hand, empirical research relies on experience or observation alone, often without due regard for system or theory. It is data-based research, coming up with conclusions that are capable of being verified by observation or experiment. It is therefore also known as experimental research. In empirical research, it is necessary to get facts firsthand, at their source. In such research, the researcher must first provide himself with a working hypothesis or guess as to the probable results. He then works to gets enough facts (i.e. data) to prove or disprove his hypothesis.

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 or traditional research is concerned with documents rather than concerned with people and society or experience and observations etc. Also known as theory-testing or knowledge- building research deals with studying existing laws, related cases and authoritative materials analytically on some specific matter.
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 availability of reliable data is the biggest challenge in conducting doctrinal research. The a 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.

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 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. 
Doctrinal legal research contributes to 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 as the analysis also reveals (in)consistency in, and (un)certainty of, the law, legal principles or doctrines. 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. 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 the improvement of the law, legal concept or doctrine, as the case may be. 
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.

NON-DOCTRINAL RESEARCH
Non-doctrinal research, also known as socio-legal research is legal research that employs methods taken from other disciplines to generate empirical data to answer research questions. It can be a problem, policy or law reform based. The non-doctrinal approach allows the researcher to perform interdisciplinary research where he analyses law from the perspective of other sciences and employs these sciences in the formulation of the law. It is valuable in revealing and explaining the practices and procedures of legal, regulatory, redress and dispute resolution systems and the impact of legal phenomena on a range of social institutions, on business and on citizens. The methods like observation, interview, questionnaire, survey and case study are used to discover the human conduct. All inquiries are not suitable for empirical methods. Any inquiry whose objective is to determine what is good and what is evil cannot be empirically tested
In non-doctrinal 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 endeavours to look into ‘social face or dimension’ of law and ‘gap’, if any, between ‘legal idealism’ and ‘social reality. Thus, non-doctrinal legal research involves the study of the social impact of law or of social-auditing of law.
In non-doctrinal 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 endeavours to look into ‘social face or dimension’ of law and ‘gap’, if any, between ‘legal idealism’ and ‘social reality’. Non-doctrinal legal research, thus, involves the study of ‘social impact’ of law (existing or proposed) or of ‘social-auditing of law’
The inquiry, in the ultimate analysis, relates to: 
  1. 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), 
  2. it's social assimilation (involving an inquiry into its operational facets and the factors that are responsible for making it dysfunctional), and 
  3. 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 decisions-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 a socio-legal research, like 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.
When we see the merits of Non-Doctrinal Research it enhances lawyers’ ability to understand the implications and effects of the law on society. Legal researchers can use social science methodologies themselves to investigate issues or they can collaborate with skilled researchers from other disciplines. It highlights the ‘gaps’ between ‘legislative goals’ and ‘social reality’ and thereby ‘depicts’ a ‘true picture’ of ‘law-in-action’. It particularly highlights the ‘gap’ concerning
  1. the practice of law enforcers, regulators and adjudicators and
  2. 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-
First, non-doctrinal legal research is extremely time-consuming and costly as it requires a lot of time for collecting the required information from the field. Further, it calls for additional training in designing and employing tools of data collection.
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).

TECHNIQUES OF LEGAL RESEARCH

Observation of the readings of case laws

· Analysis of statutory law

· Comparative approach


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.
A reference properly is written in “legal citation” strives to do at least three things, within limited space: Identify the document and document part to which the writer is referring provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer), and furnish important additional information about the referenced material and its connection to the writer’s argument to assist readers in deciding whether or not to pursue the reference.

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.
  • 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 authors' names
  • the titles of the works
  • the names and locations of the companies that published your copies of the sources
  • the dates your copies were published
  • 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"

Reasons for providing citations and bibliography:
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.


Jai Keshwani is a student from School of Law, JIMS. He can be reached at [email protected] alert-info

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