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LEGAL RESEARCH.SYNOPSISINTRODUCTION & MEANING OBJECTIVES/PURPOSE PROCESSES TO OBTAIN OBJECTIVES TYPES OF LEGAL RESEARCH MAJOR STEPS INVOLVED IN LEGAL RESEARCHINTRODUCTION & MEANING★ Legal research means research/investigation in that branch of knowledge which deals with the principle...

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LEGAL RESEARCH. SYNOPSIS INTRODUCTION & MEANING OBJECTIVES/PURPOSE PROCESSES TO OBTAIN OBJECTIVES TYPES OF LEGAL RESEARCH MAJOR STEPS INVOLVED IN LEGAL RESEARCH

INTRODUCTION & MEANING ★ Legal research means research/investigation in that branch of knowledge which deals with the principles of law, legal concepts and legal institutions. ★ Legal research must be directed to the study of the relationship between the world of the law and the world that the law purports to govern as the contents of various sources of law such as statutes, juristic concepts, judgements and so on - change with the changing requirements of the society. ★ If these changes are not taken into account in interpreting the law, the existing law is bound to be doomed.

OBJECTIVES/PURPOSE ★ Due to the inherent nature of the world being that of constant change, the requirements of a society change as well. For law to keep up with this change and fulfill its function, legal research is vital to understand the dynamics of the changes and be updated accordingly. ★ In cases where there are already functioning law and/or legal institutions, but there are certain lacunae or deficiencies, legal research can be deployed to resolve the aforementioned lacunae. ★ In cases where there is a need for introduction of new laws, or modification or removal of existing laws, legal research will be needed to make the necessary changes. ★ Certain issues may have deep roots in a society and legal research can help incorporate such aspects to better legal provisions and the manner of the implementation of legal provision. ★ Legal research allows new laws to be critically evaluated, their effectiveness and consequences ascertained.

★ Legal research can pave the way for the development of new legal research tools. ★ It can develop new legal concepts, in addition to improving upon already existing legal concepts. ★ Law can be evaluated from a historical perspective, which will be useful in understanding the deeper significance of laws and the manner in which they can be updated to the current needs of society.

PROCESSES TO OBTAIN OBJECTIVES There are numerous methods and processes by which the above-stated objectives of legal research can be achieved. All of the processes play a vital role in legal research and each of them can be used depending upon the objectives at hand. The six processes to obtain objectives are: ★ Evolutionary process - This process finds out the history and the current nature of a law, legal concept or legal institution. Why and how laws relating to dowry came into place and what they are in their present form is an example of the application of this process to the issue of dowry. ★ Explicative process - This process tries to ascertain the nature, scope and the source(s) of law in order to explain the law. ★ Identificatory process - This identifies the beneficiaries of enactment of certain laws and the functioning of certain legal institutions. ★ Collative process - This process tries to investigate the effect of an existing law in relation to another law. A certain issue may have multiple laws governing it, in which case this process will be useful. ★ Projective process - This tries to find out the degree of acceptance of proposed policies by people. ★ Impact analysis process - This evaluates the impact of an established or newly formed law, legal principle or legal institution.

TYPES OF LEGAL RESEARCH Legal research can be broadly classified into two: doctrinal legal research and empirical legal research.

DOCTRINAL LEGAL RESEARCH INTRODUCTION & MEANING

★ Doctrinal research is research that is based on analysis of case laws and statues by applying logic and reasoning. It is also known as traditional or non-empirical type of research. ★ It involves analysis of case laws, arranging, ordering and systemising legal propositions, and finally, the study of legal institutions through legal reasoning and rational deduction. ★ The law of torts and administrative law are two prominent examples of this type of research. ★ Doctrinal research is the default mode of research of judges, lawyers and law professors. ★ It is heavily dependent upon the law library as a majority of the research methodology concerns the identification of authoritative sources and use of techniques to find them. CHARACTERISTICS/FEATURES ★ Propositions-based study. ★ Conventional legal theory and court decisions are the sources for research. ★ Law is studied as it exists, how law should be is not really its concern. ADVANTAGES/MERITS ★ Provides researchers with the necessary tools in the form of conventional legal theories and reported decisions to reach their goals. ★ Ultra vires and many other concepts can be improved only by doctrinal research. ★ Provides appropriate guidance when a question related to following the course of law comes up. DISADVANTAGES/DEMERITS ★ Doctrinal research overemphasises appellate court decisions. ★ If a researcher fails to take into account the reference and context of the legislation, precedent, custom, etc, his work may not be worthy of laying down any general proposition. ★ Lack of taking into account sociological factors will make study incomplete. ★ Too many presumptions may be drawn from the materials at the researcher’s disposal.

EMPIRICAL RESEARCH ★ Unlike doctrinal research where research is carried on the basis of facts and data stored in the library archives and other databases, empirical research is carried on by gathering information by a first-hand study of the subject. ★ It is also known as non-doctrinal type of research.

★ It relies on experience or observation without due regard to any theory or system and therefore it is also called the experimental type of research. ★ In empirical research, the researcher attempts to investigate impact by actual observation of the functioning of law and legal institutions. ★ Although this type of research is not popular with lawyers and judges since they prefer doctrinal research to find out a principle of law, it is gaining recognition in certain areas such as criminology, labour law, corporate law, etc. This kind of research is useful when proof is sought that certain variables affect other variables in a certain way. ★ Though empirical research is gaining significance day-by-day, it is not useful for determining the goodness or badness of a thing, standard of value or prevailing morality. Those areas can only be examined by doctrinal research. Hence it is said that empirical research, though of much value, is not of universal application. CHARACTERISTICS/FEATURES ★ Empirical research lays a different and lesser emphasis on doctrine. ★ It seeks to answer broader and more numerous questions. ★ It is not anchored exclusively to appellate reports and other traditional legal resources for its data. ★ It may involve the use of research perspectives, research designs, conceptual frameworks, skills and training not peculiar to law-trained personnel. ADVANTAGES/MERITS ★ The factual study and examination of actual functioning of law in society is extremely useful for ascertaining the acceptance of a new law or ascertaining the course of law reform. ★ It gives us an insight into understanding what kind of law the present-day society needs. ★ It has given rise to the sociological school of jurisprudence. DISADVANTAGES/DEMERITS ★ Empirical research is time consuming. costly, calls for additional training and a great commitment of time and energy. ★ It needs a strong base of doctrinal research. The researcher must have a strong base of legal doctrines, case laws and legal institutions. ★ It is similarly weak in solving a case on hand, similarly it is not effective where the law is to be developed from case to case. ★ It cannot give direction as to what course the law should follow.

MAJOR STEPS INVOLVED IN LEGAL RESEARCH. ★ Legal research follows a certain methodology which can be broken down into major steps. They are: STEP 1: Formulation of legal problem. STEP 2: Extensive survey of literature. STEP 3: Formulation of hypothesis. STEP 4: Collection of material. STEP 5: Analysis of material. STEP 6: Testing of hypothesis (if possible). STEP 7: Generalisation and interpretation. STEP 8: Report preparation. ★ Formulation of research problem. Firstly, the topic of research must be chosen. In the field of law, the researcher has a broad scope. After choosing the area of law, he must choose a specific topic of research. Then the problem or analysis can be stated in a broad way. He can then come up with solutions with an in-depth analysis. Thus, precise formulation of a research topic is the first step and doing so means a great deal of the battle is won. ★ Extensive literature survey. The next step is to take an extensive literature survey on the material related to the research problem. Journals, bibliographies, conference proceedings, government reports, NGO reports, reference textbooks and relevant textbooks must be consulted. ★ Formulation of hypothesis. Once a thorough literature survey has been done, the researcher will have enough knowledge to come up with a hypothesis or even many hypotheses to explain the underlying nature of the problem. A hypothesis is a tentative assumption made in order to draw out and test its logical consequences. An important step as it provides a focal point for research and limiting the area of research. ★ Collection of material. Proper research cannot be conducted unless the relevant materials have been examined, for which they need to be first collected and compiled. Collection of material requires lots of energy and attention as well as patience. There are two types of material - primary and secondary. Primary material is found in original documents, commission reports, gazettes, judgements, legislative material and so on. Secondary material are those prepared on the basis of primary data, such as commentaries, digests, writings, articles and so on. In addition, the researcher may collect primary material himself by personally conducting interviews, questionnaires, surveys and so on. ★ Analysis of materials. Once collection is done, the important step of analysis is undertaken. In case of doctrinal research, the researcher can proceed smoothly if he is well acquainted with the fundamental principles. He is required to examine the facts, lines of argument, relief sought, history, etc. In the case of empirical research, since the emphasis is on data,

statistics, questionnaires, etc, the analysis of data is conducted through coding, tabulation and then drawing statistical inferences. ★ Testing of hypothesis. After analysis of the material or data, the researcher has enough conclusions to test his hypothesis which he had already formulated. He can examine if the material/data after analysis supports his hypothesis or turns out to be contrary to it. Various tests such as chi-square test, F-test, etc have been developed in the area of empirical research. In case of doctrinal research, facts, arguments, evidence and discussions have to be examined before arriving at a conclusion. The hypothesis testing ultimately results in either accepting the hypothesis, rejecting it or modifying it. ★ Generalisation and interpretation. If the hypothesis has tested positive, the researcher will proceed towards generalisation and interpretation. If it is negative, the question doesn’t arise. Purpose is to build up a theory to be applicable in future to adjudicate upon similar or identical problems. This process, in addition to formulating a general theory also raises many important questions which may lead to further research. ★ Report preparation. Penultimate task is to write a report on the exercise done so far and giving a summary of the work. It should be carefully and diligently prepared.

OBITER DICTA AND RATIO DECIDENDI. ★ A case in order to be judged on the basis of evidence and arguments is to be supported by the case-laws already decided by the courts. ★ The judgements, particularly of the highest courts, are taken into consideration as they have legal applicability as per Article 141 of the Indian Constitution. Obiter dicta and Ratio Decidendi are part and parcel of such judgements. ★ Obiter dicta is Latin for the phrase ‘by the way’, that is, a remark in a judgement that is ‘said in passing’. It is a concept derived from English common law. ★ For the purposes of precedent, ratio decidendi is binding while obiter dicta is persuasive only. ★ A judgement statement can be ratio decidendi only if it refers to the crucial facts and laws of the case. Statements that are not crucial or which refer to hypothetical facts are obiter dicta. ★ Obiter dicta are remarks or observations made by a judge that, although included in the body of the court’s opinion, do not form a necessary part of the court’s decision. ★ They are not authoritative but merely a ‘statement of law which could not logically be a major premise on the selected facts of the decision.’ ★ Ratio decidendi is a Latin phrase meaning ‘the reason’ or ‘the rationale for the decision’. It is the ‘point in a case that determines the judgement’ or ‘the principle that the case established.’ ★ It is a legal phrase which refers to the legal, moral, political and social principles used by a court to compose the rationale for a particular judgement. ★ Unlike obiter dicta, ratio decidendi, as a general rule, is binding on lower courts and later cases of the same essential nature. This is so because of the principle of stare decisis, which means that there should be uniformity in the judgements of all courts. ★ Ratio decidendi is a powerful tool since it acts as a precedent. For eg, the ratio decidendi in the landmark case Donoghue v. Stevenson was that a person owes a duty of care to those he can reasonably foresee will be affected by his actions.

HYPOTHESIS. Introduction

● A hypothesis is a statement temporarily accepted as true in the light of what is, at the time, known about a phenomenon. ● It is employed as a basis for action in the search of new truths. ● Construction of a hypothesis is the second important consideration in the formulation of a research problem. 1. Meaning. ● A hypothesis is a tentative supposition or provisional guess which seems to explain the position under observation. ● A hypothesis is a tentative generalisation as to the existence of some fact, condition or relationship relative to some phenomenon which serves to explain already known facts in a given area of research. ● It also serves to guide the search for new truth on the basis of empirical evidence. 2. Importance. Hypothesis has a very important place in research, although it occupies a very small place in the body of the thesis. It is difficult for a researcher to proceed with his work if he is not capable of formulating a hypothesis about his problem. ● The formulation of hypothesis provides a study with focus. It reveals the specific aspect of a research problem to investigate. ● As it provides direction to research, it tells what data to collect and what data to not collect, thus preventing the review of irrelevant literature and the collection of useless or excess data. ● As it provides a focus, the construction of a hypothesis enhances objectivity in a study. ● A hypothesis serves the function of linking together related facts and info and organising them into one comprehensible whole. ● It may enable us to add to the formulation of theory and helps us to bridge the gaps in the body of knowledge. 3. Characteristics of hypothesis. ● Should be capable of verification. The hypothesis should be such as can be put to empirical test, which is the basis of objectivity which is essential to any scientific method. ● Should be simple, specific and conceptually clear. There shouldn’t be any ambiguity, as it will make the verification of a hypothesis almost impossible.

● Should be related to the body of knowledge. It is important that a hypothesis emerges from the existing body of knowledge. ● Should be operationable. That is, it can be expressed in terms that can be measured, otherwise it cannot be verified. 4. The various types of hypotheses are as follows. Uniform hypothesis. Analytical hypothesis. Null hypothesis. Hypothesis of difference. Hypothesis of point-prevalence. Hypothesis of association. 5. How to formulate hypothesis for research. STEP ONE. A researcher should start with trying to determine all the alternative means which may be applied to the problem through a resource survey. STEP TWO. He has to determine which course of action or solution is most efficient in terms of certain criteria. STEP THREE. Formulation of an alternative hypothesis involves 1. A measure of efficiency applicable to all the alternative courses of action is selected. 2. On the basis of the selected measure of efficiency, a set of acceptance conditions for each alternative course of action is assigned. 3. The acceptance conditions are reformulated as hypotheses which are mutually exclusive and jointly exhaustive. STEP FOUR. In general, if there are points of disagreement, there will be an alternative hypothesis in an exclusive classification. 6. Testing the hypothesis. The proof of the worth of a hypothesis lies in its ability to meet the test of validity. After formulating a hypothesis, it is necessary to i) deduce its consequences, ii) select or develop tools that will determine whether these consequences actually occur and iii) use the tools thereby collecting facts that will either prove or disprove the hypothesis.

STATUTE. ★ A statute is the highest constitutional formulation of law, the means by which the supreme legislature of the land expresses its will after deliberation. ★ The aim of a statute is to either make a law or amend existing laws. Thus, a ‘statute’ means a written law made and declared by the sovereign or a subordinate authority of the sovereign. The following are the compositions of every statute. ★ Title. An Act begins with a title which is assigned to the Act. For example, The Specific Relief Act, 1963. The title is accompanied by the Act number and year. Example - Act No. 47 of 1963. The titles are of two types. Short title and long title.

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Short title includes the main title and year of enactment on the right side. Long title follows the short title and is placed before the preamble. The long title briefly tells us as to what for the Act was enacted and informs us of the policy and purpose. Preamble. The introductory and explanatory part, which explains the reasons, clears doubtful parts and is very useful. Definition clause. Provided to explain the meaning of keywords and phrases used in the act. Definitions should be clear and unambiguous. Headings. Each statute is divided into various parts and they are known as sections, sub-sections and clauses. Each section begins with a heading. Headings are essentially a table of contents of the Act. Marginal notes. They appear on the roll. Section/Article. Constitutes the principal or enacting part of a statute and is considered a whole whether divided into sub-sections and clauses. ‘Section’ is used in statutes concerning areas of law other than constitutional law (where ‘Article’ is used). Punctuation mark. Important and weight should be given to it but it cannot be allowed to control the meaning of the text. Illustrations. They help explain and simplify with the help of hypothetical examples. They help us in knowing how a certain section is to construed. Proviso. Attached to a clause for the purpose of explaining a matter attached therein. It deals with exceptions with regards to a case or class of cases which otherwise would fall within the ambit of the clause. Its scope is confined to only those specific cases. Exceptions. They are exceptions which deal with cases where the relevant section or clause is to be considered not applicable and which otherwise would have been applicable. Explanation. Added to a section or clause to explain it. Neither enlarges nor does it restrict the scope of the section, it merely explains it and deals with any confusing parts. Saving claus...