In general, it can be elucidated that all research is the gathering of evidence or information for ascertaining an assumption or verifying some hypothesis. Research is, therefore, an enquiry for the verification of a fresh theory or for supplementing prevailing theories by new-knowledge. Infact, no research can be purely new, as even original discoveries are an extension of the search already undertaken, being shaped generally as expressing agreement or refutation or plain addition. The purpose of the Legal Research is to safeguard the interest of the society as a whole by protecting its physical (or) mental health. Legal research is for authority to verify some hypothesis and is a continuum under the broad theme of enquiry about law, an analysis is made of the rules, concepts and institutions of the law and of the legal system in it’s entirely.
WHAT IS RESEARCH?
“The acquisition of knowledge is the mission of research, the transmission of knowledge is the mission of teaching, and the application of knowledge is the mission of public service.” – James A Stafford.
Research is combination of two words Re + Search which means the repetition of search. According to plutchick Research means to go around as to explore. Research is the process of collection of evidence or information for ascertaining an assumption or verifying some hypothesis1.
John W Best has rightly said “The secret of our cultural development has been research, pushing back the areas of ignorance by discovering new truth, which, in turn, leads to better ways of doing things and better products”.
The Webster’s international dictionary defines research as “a careful inquiry or examination in seeking fact or principles; diligent investigation in order to ascertain something”.
In the words of Francis Bacon, “Research is a power of suspending judgment with patience of mediating, with pleasure of asserting with caution, of correcting with readiness and of arranging thought with scrupulous plan.”
OBJECTIVES OF RESEARCH:
Right from the evolution of human society, intellectuals of the society are always inclined to probe for facts of the empirical world and to reveal the truth, “Every aspect of human behaviours or facts of life has a problem. In ‘society there were problems, there are problems and there will be problems, we have to find out answer to those problems. Hence this is the requirement of the society to conduct research2.
1. Legal Education and Research Methodology by Dr. Mono Purohit, Central Law Publications
2. Khan, J.A. 2007 P-1
In simple words we can say research is a prerequisite for a dynamic society. To seek the answer of a problem and development of society, research plays a significant role. Every research is socially oriented, as research is always conducted for the betterment of advancement of the society. It may discover new facts or test old existing facts. The aim of research is to find out the truth which is hidden or unknown and which has not been discovered so far.
The research has its functions and uses. We conduct research either to enhance the efficiency of our system, increase the volume and quality of information, to add on to what already exists or for creating material conditions of comfort. This also makes us become a class apart. In other words research has got to be meaningful.
LEGAL RESEARCH IN GENERAL:
Any systematic investigation, inquiry or search for information is research. “Systematic investigation of problems and matters concerned with law is Legal Research”.
Legal research may be pursued to obtain better knowledge and understanding of any problem of Legal Philosophy, Legal History, Comparative study of Law, or any system of positive law. It is also very essential for writing text and teaching, for ascertainment of the correct rules bounded by their limitations.
OBJECTIVES OF LEGAL RESEARCH:
One of the reasons for conducting legal research is to analyse the law by reducing, breaking and separating the law into separate elements. It can be as simple as examining and explaining new statutes and statutory schemes or as complex as explaining, interpreting and criticising specific cases or statutes.
Another reason is “to fuse the disparate elements of cases and statutes together into coherent or useful legal standards or general rules”.
The product of this research is legal standard that is consistent with, explains, or justifies a group of specific legal decisions.
TYPES OF LEGAL RESEARCH:
- Historical Research,
- Doctrinal Research (or) Traditional Research,
- Non-Doctrinal (or) Socio-Legal (or) Empirical Research,
- Comparative Research,
- Induction and Deduction Research,
- Other Kinds of Research,
- Case Law Analysis,
- Oral Advocacy.
(a) HISTORICAL RESEARCH:
Historical Research means “Finding out the previous law in order to understand the reasons behind the existing law and the course of its development.”
P.M.Bakshi in his essay “Legal Research and Law Reform” stated Historical Research as “On the Archives Building in Washington, there is a famous inscription which reads:
“ALL THAT’S PAST IS PROLOGUE”.
These are pregnant words and not mere rhetoric. The past often explains the present, most vividly”.
Historical research in this context is not meant a discussion of the history of each rule of law or of each statutory provision for the sake of mere intellectual delight or for mere record. Like all other types of research required for the purpose of law reform, historical research is useful in law where the present statutory provision or rule of law has raised meaningful queries and it becomes necessary to explore the circumstances in which the present position came about.
Not unoften, an exploration of the historical material gives a clue to the reasons why a particular provision was framed in the form in which it now appears. This often removes certain doubts, or even supplies to the researcher the reasons that justify the present provision – reasons which may not otherwise be apparent. Obviously, where such a fruit is yielded by historical research, it has its own utility. It prevents one from making a suggestion for change in the law which one was tempted to make (before knowing the past), but which now appears to be unnecessary.
Secondly, historical research may often reveal that alterations in the law on particular lines which are now tentatively under consideration had already been thought of in the past also, in the earlier attempts at reform of the law, but had been rejected for sound and valid reasons.
Thirdly, historical research would often show that a particular existing provision, fully justifiable at the time when it was introduced, is no longer so justifiable because the reasons that justified the original inclusion of that provision are no longer valid. Historical research reveals the reasons, which might otherwise remain obscure.
Finally, on more general level, when the history of a particular idea which has been given a concrete shape in the law is studied in depth, it shows the gradual evolution of the law on certain lines, thus showing the general trend of change. It is true that some jurists fight shy of history3.
Jeremy Bentham stated “we are told, had scant respect for history and contributed little to an understanding of legal and social change in a continuum.”
But it is now well recognised that in many cases there is certain logic in the way in which the law evolves, even though, in some other cases, one may, no doubt, find that the law had in the past developed rather on haphazard lines.
Of course, when one speaks of historical research, one is not confined to pure law. Even though the material directly under study may be legal, that is to say, the source to be consulted may be a traditional legal source, the factual material that comes to light and the knowledge of ideas gathered from such a source, may often have an interest that transcends the exclusively legal field. In fact, social and legal factors cannot be always reduced to water tight compartments. Any adequate appraisal of the precise nature and rate of change in a particular country must also pay special attention to the effect of relevant physical, demographic, technological and ideological variables4.
3. Sir William Holdsworth, A History of English Law,
Vol. XIII at 125 (1966 reprint).
4. Edward.S.Crowin, The Constitution and What it means Today,
Preface at V (12th Edition, 1958)
Notwithstanding Bentham’s view that “a science of law and legislation, could be created which was governed by laws as invariable as those which governed the physical world.”
Sources of Historical Material:
What, then, are the sources from which historical material may be drawn? Here the legal researcher sometimes feels a handicap. Notwithstanding the availability of general books on Indian legal history and Indian constitutional history, the researcher will find that when he sits down to tackle a particular subject assigned to him in a project of law reform, the historical material is not easily traceable. At least, it is not as easily traceable as Precedents.
So far as pure statute law goes, some of the commentaries, no doubt, supply the reader with the text of the corresponding provisions in earlier statutes. But this does not always fully satisfy the curiosity of the researcher, and may not, in every case, yield sufficient light as to why a certain provision was phrased in a certain manner in the corresponding earlier statute.
For this purpose, he will have to consult the relevant legislative debates. Fortunately, so far as central Acts go, these are excellently preserved in the national archives or state archives in regard to the older Acts. If the researcher finds it necessary (as he often may) to know the contemporaneous judicial understanding or exposition of the earlier provision, he will certainly like to go to the sources that contain such exposition. Experience has shown that one of the best sources to be consulted for this purpose are the earlier’ commentaries on the particular statute5.
(b) DOCTRINAL RESEARCH (or) TRADITIONAL RESEARCH:
Doctrinal legal research into Legal Rules, principles, concepts or doctrines. It involves a rigorous systematic exposition, analysis and critical evaluation of legal rules, principles or doctrines and their inter-relationship. It arranges the existing law in order and provides thematic parameters for such an order. It also concerns with critical review of legislations and of decisional processes and their underlying policy6.
5. P.M.Bakshi, Legal Research and Law Reform, ILI, First Reprint 2006.
6. Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 2009
Doctrinal legal research, thus, involves:
(i) Systematic analysis of statutory provisions and of legal principles involved therein, or derived therefrom, and
(ii) Logical and rational ordering of the legal propositions and principles.
The conventional legal approach to the law is all about doctrine. Legal academics understand that the language of judicial opinions represents the law. The classical form of legal scholarship was doctrinal research, in which a researcher examined the content of a legal opinion to evaluate whether it was effectively reasoned or to explore its implications for future cases. Doctrinal research was grounded in a descriptive premise that reasoned argument from doctrinal premises actually explained judicial decisions. In other words this type of research may also be called as “Traditional Research”.
In a doctrinal research, a legal scholar takes one or more legal propositions as a starting point as focus of his study. Dr.S.N.Jain observed that “doctrinal Research involver’s analysis of case law is arranging, ordering and systematizing legal proposition and study of legal institution through legal reasoning or rational deduction”.7
Sources of doctrinal research:
Ordinarily conventional legal sources are used in doctrinal research. Scholar undertaking doctrinal research takes secondary data relevant to his proposition. His sources not only include Statutes or enactments – but also reports of committees; legal history, judgment etc. Acts passed by state legislatures and parliament comes under this category of sources. Judgments of Supreme Court and high courts also come under above mentioned sources. They have primary authority. Text books, periodicals, commentaries also come under sources of doctrinal research but they are not as authentic as original sources like enactment and case published by authorised publisher.
Suitable examples and case laws:
This kind of research is carried on by all the Judges, Lawyers and Law teachers.
The two most important examples of traditional research are the Law of Torts and Administrative law. These two areas of law have been developed by the Judges rather
7. S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)
than the theoretical researchers. According to Cardozo8 “law or legal propositions are not final or absolute. They are in the state of becoming. Accepted norms or principles whether Statutory or as principle of justice, equity and good conscience are applied again and again to test its veracity or authenticity as a true principle of Law. If it is found to be
Unjust, it may be modified or changed to meet the present requirement.
For example, the Indian Penal Code, 1860 has declared that an attempt to commit suicide is an offence and the person attempting to do so is punishable under that law. But in Nagbushan Patnaik’s Case9 the Supreme Court had declared this provision is unconstitutional as it is in violation of Article 21 of the Constitution of India which confers on the people, the right to personal liberty. As interpreted by the Supreme Court the right to personal liberty under Article includes the right to die as well and hence a person attempting to commit suicide cannot be punished under the section of the Indian Penal Code.
The Supreme Court has observed as follows:
“Section 309 of the Penal Code deserves to be effaced the statute book to humanize our penal laws. It is a cruel and irrational provision and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignoring because of his failure to commit suicide. Then an act of suicide cannot be said to be against, religion, morality or public policy and an act of attempted suicide or attempt to commit it causes no harm to others, because of which states interference with the personal liberty of the concerned person is not called for. Thus Section 309 of the IPC violates Art. 21 and so. It is void. May it he said that such View would advance not only the cause of humanization, which is a need of the day. But of globalization also, adverse sociological effects are caused by the death of the concerned person and not by one who had tried to commit suicide. Indeed, those who fail in their attempts become available to be more or less as useful to the family as they were. So the person to be punished is one who had committed suicide but he is beyond the reach of law and cannot be punished. This provides no reason to punish a person who should not be punished.”
The problem of suicide is of controvertible nature. The question whether a person is free to choose the manner and time of his own death has generated thought provoking debate for a long time.
8. Benjamin Cardozo, The Nature of Judicial Process, 23 (1921)
9. P.Rathinam Nagbhooshan patnaik v. Union of India and another, A.I.R 1994 Pg. 1844
As the latest decision of the Supreme Court on the point, Gian Kaur v. State of Punjab10, lays down, life is considered the most precious commodity and every effort has to be made to preserve it. The Court, in the instant case, made it clear that the right to life, including the right to live with human dignity would mean the existence of such right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. The Supreme Court also reversed its earlier judgement in the Rathinam Case11 and held that the right to life does not include a right to die.
Commenting on Administrative Law, Grundstein has observed:
“The creation of a body of law where none had hitherto existed is a social achievement. It is to be an achievement not to be underestimated. It also serves as a reminder that at particular periods in the history of law the creative working out of legal doctrine both necessary and critical and justifiably a paramount concern of legal research12.”
Apart from this our statutory law, is replace with such phrases or Vocabularies which have no definite answer for all situations. The Courts have been given the discretion to interpret and apply them so as to sub serve the social need, e.g., ‘just and equitable’, `public order’, ‘reasonable Opportunity of being heard’, ‘reasons to believe’, ‘rash or negligence act’, ‘reasonable apprehension’, ‘industry’, etc. while interpreting these phrases the judiciary itself has evolved certain norms which are vague and flexible13. Which can be made certain and workable by evolving principle on the basis of research.
Ours is a welfare society is to adjust the conflicting interest of various components of the society by applying the principle of “reasonable classification. But what is a reasonable classification is in itself a matter of discussion and debate. Here the researcher can find out as to what standard can be termed as reasonable classification- Likewise, as to what can precisely be termed as ‘basic structure’ of the Constitution is not clear. It can be determined by making a thorough enquiry into it. The task of a doctrinal researcher is not a purely mechanical one.
10. (1996) 2 SCC 448.
11. (1994) 3 SCC 394.
12. N.D.Grundstein: Administrative Law and the Behavioural and Management Sciences, 17th Journal of Legal Education – 122 (1964 – 65)
13. S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)
While inferring a principle on the basis of available knowledge in the area of research, he may apply logic, ethics, and requirements of the day and out of several alternatives, he chooses the best one. i.e. the one which best serves the interest of the society. In modern context, the doctrinal researcher has to find out and propose those principles, rules and regulations which can serve the purposes what Roscoe Pound has termed as “social engineering” as well as the existing doctrine/principles of law may become certain and stable so that social goals may be achieved.
If the researcher happens to be a judge he can give concrete shape and stability to the legal principles by applying the principle of review or revision or overruling. A good number of cases may be cited to substantiate this point of view, e.g. Shankeri Prasad 14 and Sajjan Singh’s Cases15 were overruled by Golak Nath Case16 which was subsequently overruled in Keshavanand Bharati case17. Similarly a definite shape was provided by the Supreme Court to the right of personal liberty as given in Article 21 of the Constitution in A.K.Gopalan’s case18. But its scope was widened in Menaka Gandhi19 and in subsequent other cases because the Court was convinced that with the passage of time the meaning and scope of the right to personal liberty has considerably widened since its decision in A.K.Gopalan’s case.
The Court has introduced changes not only in the area of Constitutional Law, but also in the area of Labour law, Criminal law as well as Property Law. The Courts have held that death sentence should not be imposed in all cases in which the offence of murder is established, but only in rarest of rare cases. Death penalty is now an exception, life imprisonment is the rule20. Not only the execution of death sentence in public has been held to be a barbaric act and that the person sentenced to death to also entitled to procedural fairness till the breath of his life21.
14. A.I.R 1951 S.C. 458.
15. A.I.R 1965 S.C. 845.
16. A.I.R 1967 S.C. 1643.
17. A.I.R 1973 S.C. 1461.
18. A.I.R 1950 S.C. 27.
19. A.I.R 1978 S.C. 597.
20. Jagmohan Singh v. Uttar Pradesh,
A.I.R, 1973 SC 947
21. Triveniben v. State of Gujarat
A.I.R, 1989 SC 142
The Court has also recognized the right to die and hence an attempt to commit suicide is more an offence. Although in a recent judgment in Gyan Kaur v. State of Punjab and others, the Supreme Court has reversed this judgment and has held that the attempt to commit suicide is a punishable offence.
Most of the works of doctrinal researchers result in some concrete proposals for problems in hand, but sometimes, it fails, especially when the subject is growing very fast or when the research was undertaken merely to test the logical consistency and technical soundness of a proposition.
Essential characteristics of doctrinal research:
- This type of research involves analysis of legal proposition or legal concept.
- Legal propositions from enactments, administrative rules or regulations, cases of courts can be a part of doctrinal research.
- Conventional sources of data are used.
Doctrinal research looks at the following issue.
- The aim of preferred values.
- The problems posed by the gap between the policy goal and the present state of achievement.
- Availability of attentive choice for the implementation of goals.
- The prediction and consequences that were made.
Basic tools of Traditional Researcher:
The basic tools of a doctrinal legal researcher are:
- Statutory materials,
- Case reports,
- Standard textbooks and reference books,
- Legal periodicals,
- Parliamentary Debates and Government Reports, and
- Micro films and CD-ROM.
These tools, depending upon the nature of information they contain, may be re-categorized into primary and secondary sources of information. National Gazette and Case Reports fall in the first category, while the rest fall in the latter.
(c) NON-DOCTRINAL (or) SOCIO-LEGAL (or) EMPIRICAL RESEARCH:
However, in the recent past, doctrinal legal research has received a severe jolt due to change in the political philosophy of law from the laissez faire to the welfare state envisaging socio-economic transformation through law and legal institutions, the consequential new substantive and functional facets of law, and certain compelling pragmatic considerations arising from this metamorphosis.
Non-Doctrinal research is fact oriented. Legal researcher undertaking non-doctrinal research “takes either some aspect of the Legal decision process or the people and institution supposed by regulated law22.”
Prominent reasons and arguments stressing the need for inquiry into social facets of law are:
- The emergence of sociological jurisprudence23 and its underlying philosophy assigned ‘law’ the task of ‘social engineering’.
- In the light of such a role assigned to law, it is argued, it becomes necessary to look into the ‘factors’ or ‘interests’ of the Legislature that play significant role in setting the legislative process in motion and in identifying the beneficiaries thereof and the reasons there for.
- It becomes necessary to carry out frequent attitudinal studies of those whose legal position is sought to be modified by a given law as well as of those who are vested with the power of interpreting and implementing it so that the Legislature, armed with this feedback, can fulfill its job in a more satisfactory manner.
- A number of facts or factors that lie outside a legal system may be responsible for non-implementation or poor implementation of a given piece of social legislation.
- There is nearly always a certain ‘gap’ between actual social behaviour and the behaviour demanded by the legal norm and certain ‘tension’ between actual behaviour and legally desired behaviour.
22. Earnest.M.Jones, 2001. P-33
23. See, Roscoe Pound, Jurisprudence, vol. 1-3 (St. Paul, Minn., West Publishing Co., USA). Also see, M.D.A .Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, London, 6th edn, 1994), chap 7: Sociological Jurisprudence and the Sociology of Law.
Sociology of Law:
From where does a doctrinal researcher get his social policy, social facts and social values? The answer is his own experience, observation, reflection and study of what others have done before him in a similar or same kind of situation. However, it will certainty add value to his research if he gets an opportunity to test his ideas by sociological data. In other words, the sociology of law tries to investigate through Empirical Data how law and legal institutions affect human attitudes and what impact on society they create. The sociology of law also concerns itself with the identification and creating an awareness of the new problems which need to be tackled through law.
Just as a matter of semantics, the author will use the term “sociology of law (or) Socio-Legal” where the major tools of a legal researcher are “empirical and sociological data”. This is to be distinguished from sociological jurisprudence and, as stated earlier, a doctrinal researcher has to be but a sociological jurist because of the wide discretion available to him in modern times to make his value choices.
Though sociology of law may have great potentialities, yet a few caveats must be entered here.
Firstly, sociological research is extremely time consuming and costly, It has been stated “Socio legal research is more expensive, it calls for additional training; and it entails great commitments of time and energy to produce meaningful results, either for policy-makers or theory-builders”.24
The decisions in human affairs. However, cannot await the findings of such studies and must constantly be made, and herein comes the value and utility of doctrinal research. Thus, “Doctrinal legal research…has had the practical purpose of providing lawyers, judges and others with the tools needed to reach decisions on an immense variety of problems, usually with very limited time at disposal”.25
Secondly, Socio-Legal research needs a strong base of doctrinal research. Upendra Baxi rightly points out that “law-society research cannot thrive on a weak infra-structure base of doctrinal type analyses of the authoritative legal materials”.26
24. International Legal Center, Law and Development, 10, (New York, 1974)
25. Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
26. Upendra Baxi, Socio-Legal Research in India: A Programs rift 7 (ICSSR, 1975)
The reason is simple. The primary objectives of the sociology of law are to reveal, by empirical research. How law and legal institutions operate in society, to improve the contents of law, both in substantive and procedural aspects, to improve the structure and functioning of legal institutions whether engaged in law administration, law enforcement, or settlement of disputes.
Thirdly, sociological research may help in building general theories, but it seems inadequate where the problems are to be solved and the law is to be developed from case to case. For instance, as a matter of general theory it is axiomatic that governmental powers need to be checked as “power corrupts and absolute power corrupts absolutely”, but too much check may result in governmental ineffectiveness. This necessitates that when a case comes before a court in which abuse of power by the executive is alleged, pragmatic considerations ought to control the decision-making. Since the law to control governmental action develops from case to case, it will not do to theorise that either there should be no control over governmental action or there should be adequate control. That is why it has been said about the ultra vires doctrine, which is the basis of judicial review in case of writs:
The ultra vires doctrine provides a half way basis of judicial review between review in appeal and no review at all…. The half way review, the extent of which is not always clear, creates uncertainty about judicial intervention in administrative action. Sometimes, the courts may feel like intervening because they feel strongly about the injustice of the case before them; sometimes they are not sure of injustice and wish to give due deference to the expertise of the administration and uphold the decision.27 It is beyond the comprehension of the author how we can improve the contents of the ultra vires doctrine by sociological research.
Fourthly, the function of law in society is not only to follow or adapt itself to public opinion but also to give a lead and mould public opinion. When the law should follow one course or the other may not always be answered on the basis of sociological data but on the basis of one’s maturity of judgment, intuition, and experience, though sociological research may be of some informational value to the decision-maker.
27. M.P.Jain and S.N.Jain, Principles of Administrative Law 363 (1973)
Fifthly, on account of complicated settings (and this particularly applies to economic data) and variable factors, we may again be thrown back to our own pre-conceived ideas, prejudices and feelings in furnishing solutions to certain problems. For instance, there has been the perennial problem of governmental control of business or non- governmental control. private enterprise or public enterprise (or efficiency or inefficiency of the one or the other), and individual liberty or governmental power; We may not be able to answer these questions basic to any society through scientific study.
Kelsen Says: “The issue between liberalism and socialism, for instance, is, in great part, not really an issue over the aim of society, but rather one as to the correct way of achieving a goal as to which men are by and large in agreement, and this issue cannot be scientifically determined, at least not today”.28
Sixthly, though law-sociology research is of recent origin, yet it is common knowledge that even in the United States, where this kind of work has been done mostly, such researches have yet to show their potentiality in terms of translating the findings into legal propositions and norms. Amongst others, one reason may have been the failure to select subjects with such potentialities. Any information has some value, but when huge resources are to be staked in collecting sociological data it may be better to use them on carefully planned subjects where the research may lead to ultimate improvement of the contents of the law. Thus, with regard to decision-making research, Davis observes:
Research on decision-making excites many people, including Professor Grundstein, and the quantity of such research is voluminous even staggering. A single-bibliography on decision-making research fills a sizable volume.29
He further says:
The down-to-earth Behavioral Research Council concludes as to decision-making research: “The major result in the field, to date, has been the development of a variety of theories, the testing of which has only begun …. Little can be said about the usefulness of the field until the testing (and in some instances the stating of the theories in testable form) has been accomplished.30
28. Kelsen, General Theory of Law and State 7 (1961)
29. K.C.Davis, “Behavioral Science and Administrative Law”, 17 J. Legal Ed. 137 (1964-1965)
The distinguishing characteristics of a non-doctrinal legal research are:
- It lays down a different and lesser emphasis upon legal doctrines and concepts,
- It seeks answers to a variety of broader questions,
- It is not anchored exclusively to appellate case reports and other traditional legal sources for its data, and
- It invariably involves the use of research perspectives, research designs, conceptual frameworks, skills, and training not peculiar to law trained personnel.31
- There are several ways of collecting empirical data for social-legal research. The required information can be collected from the identified respondents in a face-to-face interaction by administrating them a set pre-determined question or through sketchy questions prepared by the respondent. These methods of data collection are known as ‘interview’ and ‘schedule’ respectively.
- The pre-determined questions can also be administered to the respondents indirectly through post, fax, emails or any other appropriate methods of communication. This method of data collection is known as ‘questionnaire’.
- A socio-legal researcher can also collect the required information by systematic ‘observation’ of a phenomenon, behavior of his respondents or institutions that constitute focus of his study or by studying other existing records that reflect the phenomenon under his inquiry.
The basic tools of data collection for a socio-legal research are:
- 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 sociology of law).32
31. Ernest M Jones, Some Current Trends in Legal Research
32. Pauline V Young, Scientific Social Surveys and Research
(Prentice-Hall of India, New Delhi, 4th edn, 1968),
Demerits of Socio-Legal (or) empirical research:
- It is time consuming and costly. It calls for additional training, great commitment of time and energy, for producing meaningful result.
- It needs a strong base of doctrinal research. The researcher must have strong base of legal doctrines, case law and legal institutions.
- It is extremely weak in solving a problem in hand; similarly it is not effective where the law is to be developed from case to case.
- It cannot give a direction as to what course the law should follow to be useful.
- It cannot remain unaffected from human vices, upbringing and thinking because acceptance of a new system of law in India depends on many factors such as awareness, value, capability and pattern of adaption.
(d) COMPARATIVE RESEARCH:
The comparative legal research is used to study legislative texts. Jurisprudence and also legal doctrines, particularly of foreign laws. It stimulates awareness of the cultural and social characters of the law and provides a unique understanding of the way law develops and works in different cultures33. It also facilitates better understanding of the functions of the rules and principles of laws and involves the exploration of detailed knowledge of law of other countries to understand them. To preserve them, or to trace their evolution34.Accordingly, comparative legal research is beneficial in at legal development process where modification, amendment and changes to the law are required.
The most common comparative legal scholarship is cross jurisdictions comparison of laws of different legal systems. It is typical tor researchers who undertake this research to examine the law as it is while at the same time provide ideas and views for future legal development. For instance, Kierkegaard 35 examined the “rules applicable to the formation of electronic contracts in the United States and the European Union”. Another example is found in Pure Economic Loss in Europe “where a group of researchers took a painstaking task of comparing laws governing pure economic loss in 13 different legal systems across the European Union”. 36
33. Walker, 1981
34. Palmer, 2005
35. Kierkegaard, (2007) in E-Contract Formation: U.S. and E.U. Perspective
36. Pure Economic Loss in Europe, Bussani and Palmer, 2003
Nowadays, comparative approach also refers to the study of specific aspects of the law from the perspective of Shari’ah37 in comparison to civil law.
So far as the countries which may be chosen for the purpose of comparison it must be kept in mind that most of our present day laws have been borrowed from the English Law and we are well acquainted with that system. Therefore, we can have recourse, very often to the English law. We can also leave recourse to the laws of the countries belonging to common Wealth e.g. Australia, Canada, Newzeland, etc.. Recourse to the law of United States of America and continental countries e.g. France, Germany, Switzerland and Sweden can also be had. Here again it could not be out of context to refer that as regards interpretation of Constitutional and Administrative Laws, we rely heavily on U.S., French and British practice. The material which should be accepted for comparison should be generally the codified law.
But if there is no codified law, on a particular subject, the authoritative works of eminent persons, papers and articles may also he examined for the purposes of comparison. Effort should always be made to have primary source for comparison. But if primary sources are not available only then recourse may be had to the secondary and tertiary sources.
But in case of secondary and tertiary sources their authenticity must be checked and rechecked two or more primary, secondary and tertiary sources may be checked with each other.
Difficulty, however, is faced when the primary, secondary or tertiary sources of law of other countries are in the language not understood by the researcher. He can obtain and make use of only translation. If possible, in the language he understands. But if the translation has not been the work of a specialist, then it cannot be relied upon as a suitable material for comparison.
If these handicaps are properly handled, this method of research is very useful for suggesting reform in law. However, in the name of reform, foreign legal system should not be imported in this country blindly. Only such reforms are suggested as suits to the Indian ethos and which is necessary for the progress and development of the country.
37. The code of Law derived from the Koran and from the teachings and example of Mohammed.
Shariah is only applicable to Muslims.
(e) INDUCTION AND DEDUCTION RESEARCH:
Induction and deduction
- The choice between induction and deduction depends on a series of factors, but above all on the objectives of our study. It can also be linked to and determine the differences between qualitative and quantitative methods.
- In law both approaches are used:
Deduction Research (also called syllogism)
1) General proposition or premise : To steal is an act contrary to Sec.1 of the Theft Act,1978.
2) Minor proposition : Anne has stolen a book.
3) Conclusion : Anne has acted contrary to Sec.1 of the Theft Act, 1978.38
Inductive Research (reasoning by analogy)
1) An eyewitness saw Anne take a book from the shelf and leave the store (witness could be mistaken)
2) Anne was stopped outside the store with the book by the store detective.
3) That particular book had not been noted out of the store by the computer sales system (computer could be wrong)
4) 1-3 taken together proves the physical act (actus Reus) of theft at the level of evidence.
5) Crimes usually require mental element, the mens rea. (Anne alleges that she did not intend to take the book).
6) Consider Sec.1 of the Theft Act 1978.
This also demonstrates that the application of rules requires taking into account the social and legal context of the act. Rules provide the starting point for deliberations.
38. Hanson, Sharon, Legal Method and Reasoning (London: Cavendish, 2003) pp. 215-268
(f) OTHER KINDS OF LEGAL RESEARCH:
1. Applied and 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 with a view to making generalizations about human behavior fall in the category of fundamental or pure research. But if the research (about human behavior) is carried out with a view to solving a problem (related to human behavior), 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 is 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 proposes, through a systematic inquiry, a solution or suggests 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.
2. Statistical Research:
This kind of research is very significant in the area of science especially Economics, Commerce etc. But so far as law is concerned, it can be said without doubt, that this will be of some help only for suggesting law reform. However, there are people who are of the opinion that this kind of research may be applied in the field of law as well. The most difficult aspect of this kind of research is the collection and examination of statistics. It is a specialized function. A person having no knowledge of statistical activity; cannot undertake this kind of research. However, in limited areas requiring simple statistics, this process may be applied, e.g., in the area of land reform; disposal of pending cases by the court enhancement in wages, and other monetary benefits etc.,
In order to collect statistics, field research in the form of sample survey , opinion polls, questionnaires etc is conducted and it can be conducted efficiency only by a qualified person with an aptitude for research and having professional training and legal knowledge. In case, the person conducting statistical research has no legal knowledge, the involvement of persons from the area of law is must as it facilitates the smooth conduct of the work for the purposes of law reform. Since law is a behavioural science, therefore statistical research should be applied with caution and only where it is necessary to do so.
3. Critical research:
As we know that the objective of legal research is not only to propose suggestions for legal reform. It may be carried on for many other purposes as well. Where, however, the object of research is only to indicate in which way it is to be carried on, such a research is termed as critical research because in such cases the objective is to ascertain a common principle or norm and hence, it is also termed as ‘normative research’ . In this kind of research gathered material is thoroughly examined and a common thread is ascertained which ultimately becomes the basic norm.
For the purposes of critical research, the necessary material is obtained from codified law, judicial observations and pronouncements and academic Writings. In matters of critical research, public opinion also plays an important role and public opinion must be ascertained in a proper manner.
4. Quantitative and Qualitative Research:
Quantitative research is based on the measurement of quantity or amount. It is applicable to a phenomenon that can be expressed in terms of quantity. It is 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 pertaining to the phenomenon under inquiry. The process of measurement, thus, is central to quantitative research because it provides 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 behavior, 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 reason behind various aspects of behavior.
(g) CASE LAW ANALYSIS:
In the case-law method of research much creativity goes on is shown by Cardozo in his work, The Nature of the Judicial Process. His thesis is that law or legal propositions are not final or absolute but are in the state of becoming. He quotes Munroe Smith:
The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined39.
‘Case-Law’ consists of rules and principles stated and acted upon by the Judges in giving decisions. Like English Law, Indian Law also is largely a system of Case Law. That is the decision in a particular case constitutes ‘Precedent’. According to the ‘Doctrine of Precedent’ it is not everything said by a Judge, when giving judgement that constitutes precedent. But only the reason of the decision given in the judgement constitutes precedent. So the reason stated in the judgement of an appeal case becomes a necessary subject matter of inquiry and analysis by a lawyer. This requires identification of the most important parts of the judgement40. They are:
39. Quoted in The Nature of the Judicial Process 23 (1921)
40. Shipra Agarwal, Legal Research Methodology, 1st Edn. 2003
Published by Sri Sai Law Publications, Haryana
- A statement of the significant facts of the dispute before the court – the facts that are necessary to an understanding of the dispute and of the court’s decision, those that influenced the court’s reasoning and decision.
- A statement of a relevant procedural details such as the explanation of the legal nature of the controversy and of the remedy sought,. The actions and the ruling of the lower court.
- A statement of narrow legal question or issue(s) that the appellate court was asked to resolve.
- A brief statement of the Appellate Court’s decision, both procedural and substantive.
- An explanation of court’s reasoning in reaching its decision.
In modern times, case-law based research is concerned to a very large extent with considerations of social value, social policy and the social utility of law and any legal proposition. It is naive to think that the task of a doctrinal researcher is merely mechanical – a simple application of a clear precedent or statutory provision to the problem in hand, or dry deductive logic to solve a new problem. He may look for his value premises in the statutory provisions, cases, history in his own rationality and meaning of justice. He knows that there are several alternative solutions to a problem (even this applies to a lawyer who is arguing a case before a court or an administrative authority) and that he has to adopt one which achieves the best interests of the society. The judges always unconsciously or without admitting think of the social utility of their decisions, but cases are also not infrequent when the Indian Supreme Court has consciously and deliberately incorporated social values in the process of its reasoning. To take a few examples here, in Bengal Immunity Co. v. State of Bihar, 41 the court, while overruling State of Bombay v. United Motors, 42 stated:
All big traders will have to get themselves registered in each State, study the Sales Tax Acts of each State, conform to the requirements of all State laws which are by no means uniform and, finally, may be simultaneously called upon to produce their books of account in support of their returns before the officers of each State. Anybody who has any practical experience of the working of the sales tax laws of the different
41. AIR 1955 SC 661
42. AIR 1953 SC 252
States knows how long books are detained by officers of each State during assessment proceedings…. The harassment to traders is quite obvious and needs no exaggeration.
In Jyoti Pershad v. Union Territory of Delhi, 43 the Supreme Court observed:
The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time…. lf law failed to take account of unusual situations of pressing urgency arising in the country, and of the social urges generated by the patterns of thought-evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence…. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the ,moral and material progress of the community as a whole.
In the famous Golak Nath v. State of Punjab, 44 Subba Rao, C.J., said:
But, having regard to the past history of our country. it could not implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State lt. therefore, preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights, subject to social control.
The court’s concern with social justice is depicted forcefully in following observations of Bhagwati, J., in Kanwarlal v. Amarnath45
This produces anti-democratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party in or individual who is without any links with affluence or wealth. This
43. AIR 1961 SC 1602
44. AIR 1967 SC 1643
45. AIR 1975 SC 308
Would result in serious discrimination between one political party or individual and another on the basis of money power, and that in its turn would mean that “some voters are denied an ‘equal’ voice and some candidates are denied an ‘equal Chance’”. The democratic process can function efficiently and effectively for the benefit of the common good and reach out of the benefits of self government to the common man only if it brings about a participatory democracy in which every an, however lowly or humble he may be, should be able to participate on a footing of equality with others. Individuals with grievances, men and women with ideas and vision are the sources of any society’s power to improve itself.
(h) ORAL ADVOCACY:
1. What Should You Try To Accomplish With Oral Argument?
A. Don’t just repeat your brief. Use the medium of personal argument to accomplish things you cannot do with a written brief:
1. Be more personal and interactive — have a conversation with the court about the case.
2. Be more graphic — use more personal language.
B. Address and resolve the court’s concerns about the case
C. Create a mood/theme that makes it easier for the court to accept you theory of defense.
1. Don’t just repeat your legal theory.
2. Make the fairness of reversal the keystone of your argument.
3. Show the court in human terms why it is right for them to rule in your favour.
a. Develop the emotional theme that will make the court feel good about reversing.
b. Use the most important facts of your case to reinforce your emotional theme.
FREQUENTLY ASKED QUESTION:
Appellate judges always say that they don’t want us to talk about the facts and they don’t want us to make emotional arguments?
ANSWER TO FAQ:
Sure they say that. They learned that in the same law school classes we did. But judges are notoriously unaware of what persuades them. And judges, like everyone else, are persuaded by factual arguments with honest emotional impact. Remember, every time we lose a case on “harmless error” or “no preservation” grounds, the court is really telling us that regardless of the legal issues, they don’t think it is fair to reverse our client’s conviction. We win a lot more cases when we convince the court that reversing is the fair thing to do. And fairness is a factual and emotional argument — not a legal doctrine.
2. Components of a Successful Oral Argument
A. The First 30 Seconds — The Most Important Part of Your Argument
The first 30 seconds of your argument will set the tone for everything that follows. If you don’t use that time to define what the case is about, the court will jump in with questions about whatever they think is important. Then you will be stuck spending the entire argument discussing issues defined by the court. Even worse, if you don’t immediately establish the grounds for the argument, the court might sit quietly and wait for the prosecution to tell them what the case is really about.
The beginning of your argument is an opportunity to define the turf on which the entire battle will be fought. Be sure to use it that way.
1. Start by telling the court what went wrong at trial. Why was the conviction unfair?
- Be direct
- Be factual
- Be graphic
- Be concise
If after the first thirty seconds of your argument, the court does not know exactly why you should win the case – you have do, re-do those first thirty seconds.
2. Don’t waste time by starting your argument with empty formalisms:
EX: My name is; my client’s name is; my client was convicted of ____; he was sentenced to ____.
B. After Your Opening, Get to the Point of Your Argument Quickly
1. Decide what is important — you don’t have to include everything that was in your brief.
2. Address the issues you need to win.
a. Don’t run away from the tough issues.
b. If preservation or harmlessness is an issue, but sure to address it.
3. Be sure to support your legal argument with facts. Remember — in most cases, there is no real controversy over the law — everyone agrees about what the law is — the only controversy is over how the law applies to the facts of your case.
C. Don’t Take Impossible Positions
1. If there are unpleasant facts or legal doctrines that you can’t get around, then don‘t destroy your credibility by taking an impossible position.
2. Be sure to prepare your argument by deciding what law and facts you can’t avoid, and figuring out how to distinguish them.
3. Try to prepare answers in advance for the tough questions you know you will be getting.
D. Use clear, graphic, descriptive language.
1. No legalese.
2. Don’t talk like a cop.
3. Answering Questions from the Court
A. Always prepare by doing a moot court.
The importance of a moot cannot be overstated. Moot courts will almost always expose the weaknesses in your argument, and help you prepare good answers to the most difficult questions. A moot will also give you a good idea of what parts of your argument are working, and what parts could be made more persuasive. Virtually every oral argument disaster comes in a case where the lawyer did not bother to do a moot court.
B. Answer all questions directly.
1. The first word out of your mouth should be either “yes” or “no.” It is essential to give the court the impression that you are directly answering the question. Otherwise the judges will keep asking that same question over and over, and you will not be able to get on with your argument.
2. After answering “yes” or “no,” elaborate or explain your answer.
3. Always end an answer by looping back to what you want to be talking about.
a. Your theory of defense.
b. Your emotional theme.
The idea of “looping back” to your theory and theme at the end of an answer is probably the most critical skill to develop when answering questions. If you can do this successfully, you will control the subject that is discussed after you finish answering the question, and you can have the court spend most of its time thinking and talking about those aspects of the case that you think are most important.
C. Answer hypothetical questions directly.
1. Never say, “that isn’t our case.” The court knows this.
2. Don’t be thrown off by the stupidity of the hypothetical.
3. Answer the hypothetical in a way that is consistent with winning your case.
4. Don’t be afraid to agree with the questioning judge on aspects of the hypothetical that don’t hurt your case.
5. Remember that it’s OK to point out that the hypothetical is based on a faulty premise.
4. Rebuttal Argument
A. Don’t use this as a game of “last tag.”
Only rebut if there was something in the State’s argument that you believe should be answered. For example:
1. Material misstatements of fact.
2. Material misstatements of law.
3. An argument for which you have a clear, strong refutation.
4. The prosecutor falsely accuses you of misconduct.
B. Only use rebuttal on subjects that are important to the case.
C. Keep it short and focused on the prosecutor’s statement that you are rebutting.
D. If possible, quote the record as the source of your rebuttal.
E. Don’t personalize it.
5. Demeanour during Argument
A. Never be subservient.
The goal of oral argument is to establish a conversation about your case with the court. This can only be done if you approach the court as an equal partner in the conversation. If you grovel, the court has no reason to respect you or accept your arguments as the thoughts of an equal.
1. Be respectful, but not overly deferential.
2. Only flatter the court when they earn it.
B. ALWAYS BE HONEST AND STRAIGHTFORWARD WITH THE COURT
1. Don’t euphemize, sugar-coat or minimize the crime.
NOTE: You can minimize the impact of the crime facts by being straight forward, but using dull language.
2. Answer all questions directly.
3. ANSWER ALL QUESTIONS HONESTLY
4. Show some class. Don’t make personal attacks on the prosecutor or trial judge.
It is obvious to elucidate that ‘Legal Research’ plays very vital role in the enactment of new statutes meant for Socio-Legal development and enforcement and refining the society from all the social evils. Legal research, Infact, paves way for the students of law, the scholars, who involve and dedicate their part in the development of new ideas and concepts for their vital support to the legislators to acquaint with and then to enact them as new law for the betterment of the society and the Nation as a whole. Through the intensive study made on the subject, I am of the firm view that the instant presentation would become a little source in enlighting the study and frame work on legal research and the New Generation to meet the new golden era in law.
CASE LAWS CITED:
Journal & Pg No.
Referred in Pg No.
P. Rathinam Nagbhooshan Patnaik v. Union of India and another
AIR 1994 Pg. 1844
Gian Kaur v. State of Punjab
(1996) 2 SCC 448
P.Rathinam v. Union of India
(1994) 3 SCC 394
Sri Shankeri Prasad Singh Deo Vs. Union of India (UOI) and State of Bihar
AIR 1951 S.C. 458
Sajjan Singh v. State Of Rajasthan
AIR 1965 S.C.845
I.C.Golaknath and ors. v. State of Punjab and Anrs.
AIR 1967 S.C.1643
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.
AIR 1973 S.C.1461
A.K.Gopalan v. State of Madras
AIR 1950 S.C.27
Menaka Gandhi v. Union of India
AIR 1978 S.C.597
Jagmohan Singh v. Uttar Pradesh
AIR 1973 S.C. 947
Triveniben v. state of Gujarat
AIR 1989 S.C. 142
Bengal Immunity Co. v. State of Bihar
AIR 1955 S.C.661
State of Bombay v. United Motors
AIR 1953 S.C.252
Jyoti Pershad v. Union Territory of Delhi
AIR 1961 SC.1602
Kanwarlal v. Amarnath
AIR 1975 SC. 308
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- A Practitioner’s Guide to Effective Oral Advocacy Before the Michigan Supreme Court With Special Tips from Benjamin Franklin By Mary Massaron Ross.
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