Doctrinal and Non-Doctrinal Methods of Legal Research. PDF

Preview

Summary

Research Paper on Doctrinal and Non-Doctrinal Methods of Legal Research Submitted To: Dr. Ajay Kumar Bhatt Assistant Professor, Amity Law School Submitted By: Shriram Tiwary Enrollment No. A50801819039 [ Semester: 1] Programme: LL.M. (Master of Laws), Batch: 2019-20 Course Name: Research Method &...

Description

Research Paper on Doctrinal and Non-Doctrinal Methods of Legal Research

Submitted To:

Dr. Ajay Kumar Bhatt Assistant Professor, Amity Law School

Submitted By:

Shriram Tiwary Enrollment No. A50801819039 [ Semester: 1]

Programme: LL.M. (Master of Laws), Batch: 2019-20 Course Name: Research Method & Legal Writing 1|Page

Acknowledgement

I would like to express special thanks of gratitude to my teacher of Research Method & Legal Writing Dr. Ajay Kumar Bhatt Sir who gives me the golden opportunity to do this wonderful project on the topic “Doctrinal & Non-Doctrinal Methods of Legal Research” which also helped me in doing a lot of research and I come to know about so many things. I thank my classmates of LL.M. who provided insight and expertise that greatly assisted the research, I would like to thank a lot of people without whose co-operation and support working on this project would not have been so pleasurable and interesting. I am conducting this research project not only for marks but to also enhance my knowledge.

Thank You.

2|Page

Contents

Serial

Caption

No.

Page No.

I.

Abstract

4

II.

Introduction

5

III.

Doctrinal Method of Legal Research

7

IV.

Non Doctrinal Method of Legal Research

15

V.

Comparison of Doctrinal & Non-Doctrinal method of

23

Legal Research VI.

Conclusion

24

VII.

Bibliography

25

3|Page

Abstract Research means repeated search for something, to find out some different new things or something special knowledge in the existing facts. Legal research is any systematic study for that specific methodology which should be carried out. Method is the way of doing something and Methodology is the science of a particular subject. There are different methods of research that may be applicable in legal research. Usually legal research is divided into Doctrinal and NonDoctrinal research. This paper discussed Doctrinal (Professors) and Non-doctrinal (Lawyers or Empirical) Methods of Research to show The Legal Fraternity how to write with understanding regarding the Merits, Demerits, and the Comparisons between doctrinal and non-doctrinal legal research. Thus, the combination of methodologies, i.e., a m ixed method using ideological,social,and legal,can work together to achieve a better understanding of the law.

4|Page

Introduction Research means repeated search for something, to find out some different new things or something special knowledge in the existing facts. Legal research is any systematic study for that specific methodology which should be carried out. Method is the way of doing something and Methodology is the science of a particular subject. There are different methods of research that may be applicable in legal research. Usually legal research is divided into Doctrinal Research (Table or Library or Professors research ) and Non-Doctrinal research( Emperical or Lawyers Methods).

Lawyers, judges and jurists have widely been using doctrinal research as a systematic means of legal reasoning since nineteenth century. Doctrinal research is therefore established as the traditional genre of research in legal field. Also known as, theory-testing or knowledge building research in the legal academia, it deals with studying existing laws, related cases and authoritative materials analytically on some specific matter. With its jurisprudential base on positivism, doctrinal legal research is ‘research in law’ rather than ‘research about law’. Distinguished from literature review, content analysis or historical legal research, doctrinal legal research studies legal propositions based on secondary data of authorities such as conventional legal theories, laws, statutory materials, court decisions, among others. Where in Empirical research, researcher tries to collect knowledge or information from first hand study or primary data related to his particular matter or topic and after analysis and interpretation of those information he draws out the conclusion of that research work. Empirical research is more concerned with social values and people. Law is an integral part of the social process. It aims to organizing society in a systematic and peaceful or orderly manner. So, the tool of research will have to be altered to cope up with the present problems, or come up with various measures to root-out the different social evils. And, thus, empirical legal 5|Page

research is one of the best tools for this purpose. Law is for the society and law is also the outcome of present reaction of the society. Society being a dynamic concept also influenced the law to become dynamic in character. For upgrading the influence of law in this dynamic state, empirical legal research is only the solution. This paper intends to bring to light and analyse Doctrinal and Non-Doctrinal legal research, its purpose, distinctive characteristics and ongoing debate on methodological usage. The paper underscores the need of convergence rather than rivalry between the doctrinal and non-doctrinal socio legal research to address the problems in legal field.

6|Page

Doctrinal Method of Legal Research Definition 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, widely adhered to.” Terry Hutchinson and Nigel Duncan define, “The word ‘doctrine’ is derived from the Latin ‘doctrina’ which means ‘to instruct, a lesson, a precept’. The doctrine includes legal concepts and principles of all types – cases, statutes, rules. 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 body of rules associated with legal concept or principle that could have long history of development. Hence, doctrinal legal research is all about thorough enquiry in legal concepts, values, principles and existing legal texts such as statutes, case laws etc. In addition, eminent legal scholars have defined 'doctrinal legal research' in their own contexts to explain various aspects of the research method including its purpose, sources, particular nature of study, process, significance etc.

According to Prof. S. N. Jain, “Doctrinal research involves analysis of case law, arranging, ordering and systematizing legal propositions and study of legal institutions through legal reasoning or rational deduction.” Dr. S.R. Myneni has defined, “A doctrinal research means a research that has been carried out on a legal proposition or propositions by way of analysing the existing statutory provisions and cases by applying the reasoning power.” To Ian Dobinson and Francis Johns, “Doctrinal or theoretical legal research can be defined in simple terms as research which asks what the law is in a particular area. 7|Page

It is concerned with analysis of the legal doctrine and how it has been developed and applied. This type of research is also known as pure theoretical research. It consists of either a simple research directed at finding a specific statement of the law or a more complex and in depth analysis of legal reasoning.” Paul Chynoweth states that doctrinal legal research is concerned with the formulation of legal “doctrines” through the analysis of legal rules. He ascertains, legal doctrines clarify ambiguities within rules, place them in a logical and coherent structure and describe their relationship to other rules. Deciding on which rules to apply in a particular situation is made easier by the existence of legal doctrines (for example, the doctrine of consideration within the law of contract). He further describes, “Within the common law jurisdictions legal rules are to be found within statutes and cases (the sources of law) but it is important to appreciate that they cannot, in themselves, provide a complete statement of the law in any given situation. This can only be ascertained by applying the relevant legal rules to the particular facts of the situation under consideration.” Prof. Dr. Khushal Vibhute & Filipos Aynalem has defined doctrinal legal research as research into legal doctrines through analysis of statutory provisions and cases by the application of power of reasoning. Thus it gives emphasis on analysis of legal rules, principles or doctrines. The authors duo compare and contrast doctrinal legal research with non-doctrinal one as follows, “doctrinal legal research endeavours to develop theories, and non-doctrinal legal research endeavours to see as to whether the theories, the doctrines, that we have assumed are appropriate to apply in society at a given time, are still valid and relevant.” Doctrinal legal research is, therefore, ‘research in law’ while nondoctrinal legal research is ‘research about law’. Based on the definitions provided by the scholars, it is found that doctrinal legal research is analytical study of existing laws, related cases and authoritative materials as a whole, on some specific matter. It can be considered as relatively a theory-testing research which endeavors to seek whether theory involved within subject is so far valid or not. Doctrinal legal research deals with verifying existing knowledge on the legal issues. Since the society itself is of changing nature as per the human needs, technological innovations and economic transformations, knowledge on some particular area of law is also required to be replaced by newer findings. While people keep following same thing in the society for a long, many issues, and above all, efficacy of knowledge in some particular area of law maybe below par at the moment. While society is changing day by day, proper and 8|Page

systematic review of the existing knowledge on law is essential. Therefore doctrinal legal research works as knowledge building research in the legal field. Doctrinal research usually begins with developing legal proposition and the entire analysis of the data from primary and secondary authorities is focused on testing the proposition. Say, for example, while initiating a doctrinal legal research on the issues of precedents, a legal researcher can construct a proposition that more than two third of the precedents set by the Supreme Court lack convincing legal reasoning behind them. The researcher needs to study bulk of data generated from primary and secondary authorities related to case laws or the contents of the precedents set by Supreme Court within certain timeframe, prior studies on such precedents, related authoritative books and academic writings etc. Researcher must analyse the case laws and legal reasoning factor given in Supreme Court's judgements to supplement something new knowledge. As characterised by the study of legal texts, case laws, authoritative materials, researchers often used the terms like ‘traditional legal research’, ‘theoretical legal research’, ‘library- based legal research’, ‘basic legal research’, ‘arm-chair legal research’ and even ‘black-letter law research’ interchangeably to denote doctrinal legal research.

Jurisprudential Foundation Doctrinal legal research has its jurisprudential root on the positive or analytical school of law. As doctrinal legal research pursues what is the law in specific issue, its approach is merely analytical, or in other words, influenced jurisprudentially by the positive school of thought. Doctrinal research is underpinned by positivism and a view of the world where the law is objective, neutral and fixed. In the words of prominent jurist of positive school, H.L.A. Hart, doctrinal research “takes an internal, participant-oriented epistemological approach to its object of study.” Thus doctrinal legal research is knowledge based research in law rather than research about law. It does not go through the relationship of law with other disciplines of society. Though law itself is of the normative character, which prescribes what people ought to do or what ought not to do, doctrinal research 9|Page

does not dig out the queries on human behaviour, conducts and relationship of law with other social ingredients. As law is a normative science that regulates human conduct and relationship with backing of sanction and at the same time, stability and certainty of law are social values to be pursued, this posits doctrinal legal research at the primary concern to legal researcher. Doctrinal legal research attempts to preserve consistency in law on the basis of legal reasoning. Researcher conducting doctrinal research usually analyses the existing laws for the sake of stability and certainty in law, which could ultimately results in consistency in justice delivery.

Historical Development Doctrinal Legal Research has been dominant in the realm of research in law field for over centuries. History of doctrinal legal research dates back to nineteenth century while legal professionals were developed as clerks, law began developing as case law and the Court's decisions went on updating the law in common legal system. The doctrinal method lies at the basis of the common law and it has remained as prominent legal research method all over the world to date. Dominant influence of doctrinal method was seen in nineteenth and twentieth century legal research along with the rise of common law system. Even the notion of doctrinal also developed along with the doctrine of precedents. The rules which were ‘evolved organically and slowly’ and applied by the Courts in common legal system repeatedly and consistently were considered as doctrinal legal concepts. Following such notion of doctrinal, doctrinal research in legal concepts eventually come into existence in the common legal system. Until the first decade of nineteenth century, law itself was not established as an academic discipline in the common law world. At the same time as law gradually developed into an academic field in nineteenth and twentieth century in Europe especially in United Kingdom, doctrinal research emerged as an academic instrument for legal research. Universities in the common legal system mostly adopted doctrinal method as mainstream legal research method till the last decade of the twentieth century. Outside the European continent, in Canada and Australia, doctrinal legal research was formally defined as a category of research in 1980s. The 1982 landmark study on the state of legal research and scholarship in Canada, the Arthurs Report, 10 | P a g e

added for the first time, non-doctrinal research category, namely ‘fundamental research’ as a legal research which deals with philosophical aspects related with other social genres. The committee formed in Australia to review the research practices, headed by Dennis Pearce, categorised ‘doctrinal’ as the prominent legal research followed by ‘reform-oriented’ and ‘theoretical’ research in its report in early 1980s.

Purpose of Doctrinal Legal Research The following points respond to the query – why doctrinal research is important in law. The major purposes of doctrinal legal research comprise, but are not limited to the following: a.) To construct new legal theories, principles and doctrines, to test them and add new knowledge in the legal scholarship. b.) To help maintain continuity, consistency and certainty of law. c) . To resolve day-to-day client matters as it is more manageable and outcomes are more predictable due to its focus on established sources. d.)To advise courts or clients about the application of legal doctrine to specific cases, transactions, or other legal events. To critically examine the judicial opinions and in case of conflicts between the decisions of different court, to suggest the resolution to those conflicts. e.)To provide lawyers, judges and others with the tools needed to reach decisions on an immense variety of problems, usually with very limited time at disposal. f.)To develop a theory that tries to explain how law or areas of law fit together; to conduct comparative and historical inquiries describing an earlier era or contrasting legal regime; to expose tensions within a body of law, legal practices or institutions; and to highlight these tensions and contradictions and attempt to link them to larger psychological, social, or philosophic difficulties.

11 | P a g e

Important Points & Advantages /Merits of Doctrinal Research There are many advantages associated with library-based research methodology. Firstly, it is often traditionally taught that legal research methods should be conducted in the early stages of legal training. As a result, most legal scholars willfocus on the techniques used at the time, to initiate graduate research. In addition, for new graduate students, there will be no shortage of experts capable of providing training on ideological research. Secondly, because of the proliferation of law schools and law firms, research conducted under this design is likely to be of more acceptable character in the presence of legal research. Doctrinal research still represents a"base" in the legal community and most universities demand an even higher degree of work based on this ideological framework.For practical purposes, idiosyncratic research methodology is required. The busy practitioner tends to be concerned with the law “as it is”and rarely has the time to consider research that does not fit within that paradigm and time frame. Moreover, because of its focus on the sources of jurisprudence, established research is more manageable and results more predictable. For the postgraduate studies researcher, this may help with meeting deadlines and contain ➢ Doctrinal legal research is highly academic in nature and its purpose is to build new principles, add some new knowledge and provide foundation for study on other various socio-legal issues. ➢ Laws should be made in a right way and legal contents are required to be made strong. In the legislation process, very often, lawmakers deliberately leave some sensitive part of law without interpretation with the view that there are learned judges to interpret the issues if necessary. ➢ Doctrinal legal research boosts confidence of the judges, lawyers and the jurists. A lawyer can do a good legal research in doctrinal approach even during the litigating stage for a particular client. This can give input to the judge for valid reasoning while deciding the case. Backed by the massive knowledge acquired from doctrinal legal research, judges can be full confident upon what they are doing and such conscious rulings of the court could result in development of new concept in law. Public Interest Litigation and Judicial Activism are the exemplary concepts thriving of late which can be considered as the consequence of doctrinal legal research. 12 | P a g e

Doctrinal Legal research, in proactive manner, is much essential to introduce new concepts and positive changes in law practices, judicial decisions, administration of justice and overall justice delivery mechanism. Hence legal practitioners, judges and jurists are required to conduct doctrinal legal research systematically based on the wide range of data deposited in the library in the forms of principles, doctrines, statutory materials, treaties, relevant international cases, judicial writings, authoritative books etc. Doctrinal research can yield a clear understanding of particular legal issue in the very limited span of time.

13 | P a g e

Disadvantages/Demerits of Doctrinal Legal Research Availability of the reliable data is the biggest challenge in conducting doctrinal research. Researcher must be competent enough to identify the reliable dat...