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Doctrinal Legal Research ArticleinSSRN Electronic Journal · January 2018 DOI: 10.2139/ssrn.3130525

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Doctrinal Legal Research Amrit Kharel1 Abstract 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. This paper intends to bring to light and analyse 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. Keywords Legal research, doctrinal research, theoretical research, traditional research, library based research, black-letter law research

Introduction Legal research involves systematic examination of problems relating to law within appropriate methodological framework. It deals with study of different aspects of law such as principles, theories, process, historical development, comparative status, functioning of judiciary, justice delivery, among others. The systematic investigation of problems and of matters concerned with law such as codes, acts etc. is legal research.2 Judges, lawyers, Law Commissions and researchers constantly do research in law.3 Moreover, legal researcher can even go beyond the pure legal issues to study practical problems of the outer world in relation to law. Legal research can be broadly   1  Author is an advocate practising at Supreme Court of Nepal especially in the area of corporate law. He holds an LL.M. degree in Commercial Law and International Law from Tribhuvan University, Nepal. 2 S.R. MYNENI, LEGAL RESEARCH METHODOLOGY , Allahabad Law Agency, India, 16 (1st ed. 4th prtg. 2006). 3 Ibid.

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classified as doctrinal and non-doctrinal legal research on the basis of focus of the study – whether it examines theoretical and analytical aspects of 'law as it is' or it observes relevant social facts interrelated with law. Doctrinal legal research comprises in-depth analysis of the legal doctrine with its development process and legal reasoning whereas non-doctrinal research seeks various social facts, relationship of law with those facts, impact of law on society and such. Given that it has gained wider acceptance from all quarters of legal professionals, namely the lawyers, the judges, legal scholars and jurists, doctrinal legal research has remained as prominent research method in law.

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, that is widely adhered to.”4 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’.”5 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.

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BLACK'S LAW DICTIONARY 553 (9th ed. 2009). Terry Hutchinson & Nigel Duncan, Defining and Describing What We Do: Doctrinal Legal Research, 17(1) DEAKIN. L. REV. 84 (2012). 5

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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.”6 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.”7 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. 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.”8 Paul Chynoweth states that doctrinal legal research is concerned with the formulation of legal “doctrines” through the analysis of legal rules.9 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.”10 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,

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S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, in LEGAL RESEARCH AND METHODOLOGY, Indian Law Institute, India, 68 (S.K. Verma & M. Afzal Wani eds., 2006). 7 MYNENI, supra note 1, at 32. 8 Ian Dobinson & Francis Johns, Qualitative Legal Research, in RESEARCH METHODS FOR LAW, Edinburgh University Press, Edinburgh, 18-19 (Michael McConville & Wing Hong Chui eds., 2007). 9 Paul Chynoweth, Legal Research in the Built Environment: A Methodological Framework, in ADVANCED RESEARCH METHODS IN THE BUILT ENVIRONMENT, Wiley-Blackwell, UK, 29 (Andrew Knight & Les Ruddock eds., 2008).  10 Ibid.

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principles or doctrines.11 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.”12 Doctrinal legal research is, therefore, ‘research in law’ while non-doctrinal legal research is ‘research about law’.13 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 endeavours 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 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  11

KHUSHAL VIBHUTE & FILIPOS AYNALEM, LEGAL RESEARCH METHODS, Teaching Material, Justice and Legal System Research Institute, Ethiopia, 70 (2009). 12 Ibid. 13 Ibid, at 71.

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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.14 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.”15 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 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.16 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 law17 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   14

HUTCHINSON & DUNCAN, supra note 4, at 116. H.L.A. HART, THE CONCEPT OF LAW, Clarendon Press, Oxford, UK (1961) cited in CHYNOWETH, supra note 8, at 30. 16 JAIN, supra note 5, at 68. 17 HUTCHINSON & DUNCAN, supra note 4, at 85. 15

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system. Even the notion of doctrinal also developed along with the doctrine of precedents. The rules which were ‘evolved organically and slowly’18 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.19 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, added for the first time, nondoctrinal 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.20

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.21 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.22

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Ibid. Ibid, at 97. 20 Ibid. 21 VIBHUTE & AYNALEM, supra note 10, at 71. 22 Ashish Kumar Singhal & Ikramuddin Malik, Doctrinal and Socio-legal Methods of Research: Merits and Demerits, 2(7) EDUCATIONAL RESEARCH JOURNAL 253 (2012). 19

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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.23 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.24 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.25 The main purpose of doctrinal legal research is to improve the substantial part of the law by means of which could result in achieving the broader goal of law. The ultimate goal of law is justice rather than mere legal procedures, texts and jargons. Thus doctrinal legal research is often employed in the areas of enriching legal contents, coding and even interpretation of the legal statutes. 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. Thus judges are responsible to carry out deep study in doctrinal manner in order to avoid miscarriage of justice while giving judgment on particular issues. That sort of judgment may remain as case law for many years or even for many decades governing the particular issue. 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.   23

Adilah Abd Razak, Understanding Legal Research, 4 INTEGRATION & DISSEMINATION, Faculty of Economics and Management, Universiti Putra Malaysia 19–20 (2009). 24 SOCIOLOGY OF LAW 9 (Vilhelm Aubert ed. 1969) cited in JAIN, supra note 5, at 79. 25 HUTCHINSON & DUNCAN, supra note 4, at 104.

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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. 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.

Research Approach, Process and Steps As a doctrinal legal researcher does not deal with merely counting the number of laws related to certain fact, quantitative approach of research does not meet the purpose of this sort of research. Doctrinal re...