types of legal research needed for law r (1)
TRANSCRIPT
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“Types of Legal Research needed for Law Reform” by
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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.& ' (ames ) *tafford.
Research is combination of two words Re + Search which means the
repetition of search. )ccording 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 hypothesis+.
John !est 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&.
DEFINITIONS:
The ebster#s international dictionary defines research as %a careful
inquiry or e"amination in seeking fact or principles# diligent investigation
in order to ascertain something &.
In the words of rancis acon, %Research is a power of suspending
/udgment with patience of mediating, with pleasure of asserting with
caution, of correcting with readiness and of arranging thought with
scrupulous plan.&
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egal research may be pursued to obtain better knowledge and
understanding of any problem of egal 6hilosophy, egal 2istory,
9omparative study of aw, 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:
:ne 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 statutoryschemes or as complex as explaining, interpreting and criticising specific
cases or statutes.
)nother 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 /ustifies a group of specific legal decisions.
TYPES OF LEGAL RESEARCH:
!a" 2istorical Research,!b" 4octrinal Research !or" Traditional Research,
!c" ;on-4octrinal !or" *ocio-egal !or" 0mpirical Research,
!d" 9omparative Research,
!e" Induction and 4eduction Research,
!f" :ther
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2istorical Research means % inding out the previous law in order to
understand the reasons behind the e"isting law and the course of its
development*&
(*&*!akshi in his essay % $egal Research and $aw Reform& stated
2istorical Research as %:n the )rchives uilding in ashington, there is a
famous inscription which reads=
% -$$ T.-T/S (-ST 0S (R1$123%”*
These are pregnant words and not mere rhetoric. The past often
explains the present, most vividly&.
2istorical 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. ike 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.
;ot 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 /ustify the present provision - reasons which may
not otherwise be apparent. :bviously, 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.
*econdly, 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 re/ected for sound and valid reasons.
Thirdly, historical research would often show that a particular
existing provision, fully /ustifiable at the time when it was introduced, is no
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longer so /ustifiable because the reasons that /ustified the original inclusion
of that provision are no longer valid. 2istorical research reveals the reasons,
which might otherwise remain obscure.
inally, 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 /urists fight shy of history >.
(eremy entham stated %we are told, had scant respect for history
and contributed little to an understanding of legal and social change in a
continuum.&
ut 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
hapha?ard lines.
:f course, when one speaks of historical research, one is not
confined to pure law. 0ven 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. )ny 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 variables@.
>. *ir illiam 2oldsworth, - .istory of %nglish $aw,
Aol. BIII at +3C !+DEE reprint".
@. 0dward.*.9rowin, The 'onstitution and hat it means Today,
6reface at A !+3th 0dition, +DCF"
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;otwithstanding entham#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 =
hat, then, are the sources from which historical material may be
drawnG 2ere the legal researcher sometimes feels a handicap.
;otwithstanding 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 sub/ect assigned to him in a pro/ect of law
reform, the historical material is not easily traceable. )t least, it is not as
easily traceable as 6recedents.
*o 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. ut 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.
or this purpose, he will have to consult the relevant legislative
debates. ortunately, so far as central )cts go, these are excellently
preserved in the national archives or state archives in regard to the older
)cts. If the researcher finds it necessary !as he often may" to know the
contemporaneous /udicial understanding or exposition of the earlier
provision, he will certainly like to go to the sources that contain such
exposition. 0xperience has shown that one of the best sources to be
consulted for this purpose are the earlier1 commentaries on the particular
statuteC.
(b) DOCTRINAL RESEARCH (or) TRADITIONAL RESEARCH:
Introduction:
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4octrinal legal research into egal 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 policyE.
C. 6.5.akshi, $egal Research and $aw Reform, II, irst Reprint 377E.
E. 6rof !4r."
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:rdinarily conventional legal sources are used in doctrinal research.
*cholar undertaking doctrinal research takes secondary data relevant to his
proposition. 2is sources not only include *tatutes or enactments ' but also
reports of committees legal history, /udgment etc. )cts passed by state
legislatures and parliament comes under this category of sources. (udgments
of *upreme 9ourt 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 (udges, awyers and aw
teachers.
The two most important examples of traditional research are the aw
of Torts and )dministrative law. These two areas of law have been
developed by the (udges rather
8. *.;.(ain, 5octrinal and 6on75octrinal $egal Research, +@ ( II @F8 !+D83"
than the theoretical researchers. )ccording to 9ardo?oF %law or legal
propositions are not final or absolute. They are in the state of becoming.
)ccepted norms or principles whether *tatutory or as principle of /ustice,
equity and good conscience are applied again and again to test its veracity or
authenticity as a true principle of aw. If it is found to be
Jn/ust, it may be modified or changed to meet the present requirement.
or e"ample, the Indian 6enal 9ode, +FE7 has declared that an
attempt to commit suicide is an offence and the person attempting to do so
is punishable under that law. ut in 6agbushan (atnaik/s 'aseD the
*upreme 9ourt had declared this provision is unconstitutional as it is in
violation of )rticle 3+ of the 9onstitution of India which confers on the
people, the right to personal liberty. )s interpreted by the *upreme 9ourt the
right to personal liberty under )rticle includes the right to die as well and
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hence a person attempting to commit suicide cannot be punished under the
section of the Indian 6enal 9ode.
The *upreme 9ourt has observed as follows=
K*ection >7D of the 6enal 9ode deserves to be effaced the statute
book to humani?e 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 *ection >7D of the
I69 violates )rt. 3+ and so. It is void. 5ay it he said that such Aiew would
advance not only the cause of humani?ation, which is a need of the day. ut
of globali?ation 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. *o the person to be punished is onewho 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.K
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.
F. en/amin 9ardo?o, The 6ature of Judicial (rocess, 3> !+D3+"
D. (*Rathinam 6agbhooshan patnaik v* 3nion of 0ndia and another, ).I.R +DD@ 6g. +F@@
)s the latest decision of the *upreme 9ourt on the point, 2ian )aur
v* State of (un8ab+7 , lays down, life is considered the most precious
commodity and every effort has to be made to preserve it. The 9ourt, 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
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natural life. This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. The *upreme 9ourt also
reversed its earlier /udgement in the Rathinam 'ase++ and held that the right
to life does not include a right to die.
9ommenting on )dministrative aw, 2rundstein 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
/ustifiably a paramount concern of legal research+3.&
)part from this our statutory law, is replace with such phrases or
Aocabularies which have no definite answer for all situations. The 9ourts
have been given the discretion to interpret and apply them so as to sub serve
the social need, e.g., L/ust and equitable#, Mpublic order#, Lreasonable
:pportunity of being heard#, Lreasons to believe#, Lrash or negligence act#,
Lreasonable apprehension#, Lindustry#, etc. while interpreting these phrases
the /udiciary itself has evolved certain norms which are vague and flexible+>.
hich can be made certain and workable by evolving principle on the basis
of research.
:urs is a welfare society is to ad/ust the conflicting interest of
various components of the society by applying the principle of Kreasonable
classification. ut what is a reasonable classification is in itself a matter of
discussion and debate. 2ere the researcher can find out as to what standard
can be termed as reasonable classification- ikewise, as to what can
precisely be termed as Lbasic structure# of the 9onstitution 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.
+7. !+DDE" 3 *99 @@F.
++. !+DD@" > *99 >D@.
+3. 6*5*2rundstein= )dministrative aw and the ehavioural and 5anagement *ciences,
+8th (ournal of egal 0ducation ' +33 !+DE@ ' EC"
+>. *.;.(ain, 5octrinal and 6on75octrinal $egal Research, +@ ( II @F8 !+D83"
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hile 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 (ound has termed as % social
engineering & as well as the existing doctrineNprinciples of law may become
certain and stable so that social goals may be achieved.
If the researcher happens to be a /udge he can give concrete shape
and stability to the legal principles by applying the principle of review or
revision or overruling. ) good number of cases may be cited to substantiate
this point of view, e.g. Shankeri (rasad +@ and Sa88an Singh/s 9ases+C were
overruled by 2olak 6ath 'ase+E which was subsequently overruled in
)eshavanand !harati case+8. *imilarly a definite shape was provided by the
*upreme 9ourt to the right of personal liberty as given in )rticle 3+ of the
9onstitution in -*)*2opalan/s case+F. ut its scope was widened in &enaka
2andhi+D
and in subsequent other cases because the 9ourt was convincedthat with the passage of time the meaning and scope of the right to personal
liberty has considerably widened since its decision in -*)*2opalan/s case.
The 9ourt has introduced changes not only in the area of
9onstitutional aw, but also in the area of abour law, 9riminal law as well
as 6roperty aw. The 9ourts 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. 4eath penalty is now an exception, life imprisonment
is the rule37. ;ot 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 life3+.
+@. ).I.R +DC+ *.9. @CF.
+C. ).I.R +DEC *.9. F@C.
+E. ).I.R +DE8 *.9. +E@>.+8. ).I.R +D8> *.9. +@E+.
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+F. ).I.R +DC7 *.9. 38.
+D. ).I.R +D8F *.9. CD8.
37. Jagmohan Singh v* 3ttar (radesh,
).I.R, +D8> *9 D@8
3+. Triveniben v* State of 2u8arat
).I.R, +DFD *9 +@3
The 9ourt has also recogni?ed the right to die and hence an attempt
to commit suicide is more an offence. )lthough in a recent /udgment in
2yan )aur v* State of (un8ab and others, the *upreme 9ourt has reversed
this /udgment and has held that the attempt to commit suicide is a
punishable offence.
5ost of the works of doctrinal researchers result in some concrete
proposals for problems in hand, but sometimes, it fails, especially when the
sub/ect 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.
3. egal propositions from enactments, administrative rules or
regulations, cases of courts can be a part of doctrinal research.
>. 9onventional sources of data are used.
5octrinal research looks at the following issue.
a* The aim of preferred values.
b* The problems posed by the gap between the policy goal and the
present state of achievement.
c* )vailability of attentive choice for the implementation of goals.
d* The prediction and consequences that were made.
asic tools of Traditional Researcher:
The basic tools of a doctrinal legal researcher are=
+. *tatutory materials,
3. 9ase reports,
>. *tandard textbooks and reference books,@. egal periodicals,
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implementing it so that the egislature, armed with this feedback,
can fulfill its /ob in a more satisfactory manner.
d* ) 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.
e* There is nearly always a certain Lgap# between actual social
behaviour and the behaviour demanded by the legal norm and
certain Ltension# between actual behaviour and legally desired
behaviour.
33. %arnest*&*Jones, 377+. 6->>3>. *ee, Roscoe 6ound, Jurisprudence, vol. +-> !*t. 6aul, 5inn., est 6ublishing 9o.,
J*)". )lso see, 5.4.) .reeman, $loyd/s 0ntroduction to Jurisprudence !*weet H
5axwell, ondon, Eth edn, +DD@", chap 8= *ociological (urisprudence and the *ociology
of aw.
Sociology of Law:
rom where does a doctrinal researcher get his social policy, social
facts and social valuesG 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. 2owever, 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 !ata 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 tackledthrough law.
(ust as a matter of semantics, the author will use the term % sociology
of law !or" Socio7$egal & where the ma/or tools of a legal researcher are
%empirical and sociological data&. This is to be distinguished from
sociological /urisprudence and, as stated earlier, a doctrinal researcher has to
be but a sociological /urist because of the wide discretion available to him in
modern times to make his value choices.
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Though sociology of law may have great potentialities, yet a few
caveats must be entered here.
"irstly, sociological research is extremely time consuming and
costly, It has been stated %*ocio 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&.3@
The decisions in human affairs. 2owever, cannot await the findings
of such studies and must constantly be made, and herein comes the value
and utility of doctrinal research. Thus, %4octrinal legal research...has had
the practical purpose of providing lawyers, /udges and others with the tools
needed to reach decisions on an immense variety of problems, usually with
very limited time at disposal&.3C
Secondly, *ocio-egal research needs a strong base of doctrinal
research. Jpendra axi rightly points out that %law-society research cannot
thrive on a weak infra-structure base of doctrinal type analyses of the
authoritative legal materials&.3E
3@. International egal 9enter, $aw and 5evelopment, +7, !;ew Pork, +D8@"
3C. Ailhelm )ubert !0d.", Sociology of $aw D !+DED"
3E. Jpendra axi, Socio7$egal Research in 0ndia9 - (rograms rift 8 !I9**R, +D8C"
The reason is simple. The primary ob/ectives of the sociology of law
are to reveal, by empirical research. 2ow 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. or instance, as a matter of general
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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.
*ince 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 /udicial review
in case of writs=
The ultra vires doctrine provides a half way basis of /udicial 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 /udicial
intervention in administrative action. *ometimes, the courts may feel like
intervening because they feel strongly about the in/ustice of the case before
them sometimes they are not sure of in/ustice and wish to give due
deference to the expertise of the administration and uphold the decision.38
Itis beyond the comprehension of the author how we can improve the contents
of the ultra vires doctrine by sociological research.
"ourthly, 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. hen 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 /udgment, intuition, and experience, though sociological
research may be of some informational value to the decision-maker.
38. 5.6.(ain and *.;.(ain, (rinciples of -dministrative $aw >E> !+D8>"
"ifthly, 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, pre/udices and feelings in furnishing
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solutions to certain problems. or 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 e may not
be able to answer these questions basic to any society through scientific
study.
)elsen *ays= %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&.3F
Sixthly, though law-sociology research is of recent origin, yet it is
common knowledge that even in the Jnited *tates, 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. )mongst
others, one reason may have been the failure to select sub/ects with such
potentialities. )ny 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 sub/ects where the research may lead to ultimate
improvement of the contents of the law. Thus, with regard to decision-
making research, 4avis observes=
Research on decision-making excites many people, including
6rofessor Orundstein, and the quantity of such research is voluminous even
staggering. ) single-bibliography on decision-making research fills a si?able
volume.3D
2e further says=
The down-to-earth ehavioral Research 9ouncil concludes as to
decision-making research= %The ma/or result in the field, to date, has been
the development of a variety of theories, the testing of which has only begun
.... ittle can be said about the usefulness of the field until the testing !and in
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some instances the stating of the theories in testable form" has been
accomplished.>7
3F. 7. 0bid
The distinguishing characteristics of a non#doctrinal legal research are:
I. It lays down a different and lesser emphasis upon legal doctrines and
concepts,
II. It seeks answers to a variety of broader questions,
III. It is not anchored exclusively to appellate case reports and other
traditional legal sources for its data, andIA. It invariably involves the use of research perspectives, research
designs, conceptual frameworks, skills, and training not peculiar to
law trained personnel.>+
asic Tools:
+. There are several ways of collecting empirical data for social7legal
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 Linterview# and L schedule# respectively.
3. 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 Lquestionnaire#.
>. ) socio-legal researcher can also collect the required information by
systematic Lobservation# 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.
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The basic tools of data collection for a socio#legal research are:
i. Interview,
ii. Questionnaire,
iii. *chedule,iv. Interview guide,
v. :bservation, participant or non-participant, andvi.
6ublished or unpublished materials !such as 9ensus Reports, Reports of Oovernmental andNor ;on-Oovernmental )gencies, and appropriate literature on
sociology of law".>3
>+. 0rnest 5 (ones, Some 'urrent Trends in $egal Research
>3. 6auline A Poung, Scientific Social Surveys and Research
!6rentice-2all of India, ;ew 4elhi, @th edn, +DEF",
!emerits 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.
!3" 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.
!C" 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.
(") CO!PARATIVE RESEARCH:
The comparative legal research is used to study legislative texts.
(urisprudence 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 cultures>>. 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 evolution>@.)ccordingly, comparative legal research is
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beneficial in at legal development process where modification, amendment
and changes to the law are required.
The most common comparative legal scholarship is cross
/urisdictions 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. or
instance, )ierkegaard >C examined the %rules applicable to the formation of
electronic contracts in the Jnited *tates and the 0uropean Jnion&. )nother
example is found in (ure %conomic $oss in %urope %where a group of
researchers took a painstaking task of comparing laws governing pure
economic loss in +> different legal systems across the 0uropean Jnion&. >E
>>. alker, +DF+
>@. 6almer, 377C
>C.
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ut if there is no codified law, on a particular sub/ect, the
authoritative works of eminent persons, papers and articles may also he
examined for the purposes of comparison. 0ffort should always be made to
have primary source for comparison. ut if primary sources are not
available only then recourse may be had to the secondary and tertiary
sources.
ut 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.
4ifficulty, however, is faced when the primary, secondary or tertiary
sources of law of other countries are in the language not understood by the
researcher. 2e can obtain and make use of only translation. If possible, in
the language he understands. ut 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 isvery useful for suggesting reform in law. 2owever, in the name of reform,
foreign legal system should not be imported in this country blindly. :nly
such reforms are suggested as suits to the Indian ethos and which is
necessary for the progress and development of the country.
>8. The code of $aw derived from the
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+" The choice between induction and deduction depends on a series of
factors, but above all on the ob/ectives of our study. It can also be linked
to and determine the differences between qualitative and quantitative
methods.
3" In law both approaches are used=
D#"%c&'o$ R##arc !also called syllogism"
+" Oeneral proposition or premise = To steal is an act contrary to *ec.+ of the
Theft )ct,+D8F.
3" 5inor proposition = )nne has stolen a book.
>" 9onclusion = )nne has acted contrary to *ec.+ of the
Theft )ct, +D8F.>F
I$"%c&'*# R##arc !reasoning by analogy"
+" )n eyewitness saw )nne take a book from the shelf and leave the store
!witness could be mistaken"
3" )nne was stopped outside the store with the book by the store detective.
>" That particular book had not been noted out of the store by the computer
sales system !computer could be wrong "
@" +-> taken together proves the physical act !actus Reus" of theft at the
level of evidence.
C" 9rimes usually require mental element, the mens rea. !)nne alleges that
she did not intend to take the book".
E" 9onsider *ec.+ of the Theft )ct +D8F.
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.
>F. 2anson, *haron, $egal ðod and Reasoning !ondon= 9avendish, 377>" pp. 3+C-3EF
(+) OTHER ,INDS OF LEGAL RESEARCH:
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-. A//0'#" a$" F%$"a1#$&a0 R##arc:
-pplied research !or" -ction Research aims at finding a solution for
an immediate problem. 2ere the researcher sees his research in a practical
context. hile in undamental Research !or" (ure Research !or" !asic
Research, the researcher is mainly concerned with generali?ation and with
the formulation of a theory. 2e undertakes research only to derive some
increased knowledge in a field of his inquiry. 2e is least bothered about its
practical context or utility. Research studies concerning human behavior
carried on with a view to making generali?ations about human behavior fall
in the category of fundamental or pure research. ut 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 Lapplied# scientist is thus works
within a set of certain values and norms to which he feels committed. )
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
Lapplied# or Laction# research. ut when he undertakes a study /ust to find
out the Lwhat#, Lhow# of the social problem, his inquiry takes the
nomenclature of Lpure# or Lfundamental# research.
2owever, the above-mentioned Ldistinguishing factor# between the
Lapplied# and Lfundamental# research need not be conceived as a Lline#
putting the two Lacross# the Lline# forever or an Leither-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. S&a&'&'ca0 R##arc:
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This kind of research is very significant in the area of science
especially 0conomics, 9ommerce etc. ut so far as law is concerned, it can
be said without doubt, that this will be of some help only for suggesting law
reform. 2owever, 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
speciali?ed function. ) person having no knowledge of statistical activity
cannot undertake this kind of research. 2owever, 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 thesmooth conduct of the work for the purposes of law reform. *ince law is a
behavioural science, therefore statistical research should be applied with
caution and only where it is necessary to do so.
3. Cr'&'ca0 r##arc:
)s we know that the ob/ective of legal research is not only to
propose suggestions for legal reform. It may be carried on for many other
purposes as well. here, however, the ob/ect 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 ob/ective is to ascertain a common
principle or norm and hence, it is also termed as Lnormative research# . In
this kind of research gathered material is thoroughly examined and a
common thread is ascertained which ultimately becomes the basic norm.
or the purposes of critical research, the necessary material is
obtained from codified law, /udicial observations and pronouncements and
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laboratories of the law, the courts of /ustice. 0very new case is an
experiment and if the accepted rule which seems applicable yields a result
which felt to be un/ust, the rule is reconsidered. It may not be modified at
once, for the attempt to do absolute /ustice in every single case would make
the development and maintenance of general rules impossible but if a rule
continues to work in/ustice, 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-
examined>D.
L9ase-aw# consists of rules and principles stated and acted upon by
the (udges in giving decisions. ike 0nglish aw, Indian aw also is largely
a system of 9ase aw. That is the decision in a particular case constitutes
L (recedent/ . )ccording to the :5octrine of (recedent/ it is not everything
said by a (udge, when giving /udgement that constitutes precedent. ut only
the reason of the decision given in the /udgement constitutes precedent. *o
the reason stated in the /udgement of an appeal case becomes a necessary
sub/ect matter of inquiry and analysis by a lawyer. This requiresidentification of the most important parts of the /udgement@7. They are=
>D. Quoted in The 6ature of the Judicial (rocess 3> !+D3+"
@7. *hipra )garwal, $egal Research ðodology, +st 0dn. 377>
(ublished by *ri *ai aw 6ublications, 2aryana
!+" ) 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.
!3" ) 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.
!>" ) statement of narrow legal question or issue!s" that the appellate
court was asked to resolve.
!@" ) brief statement of the )ppellate 9ourt#s decision, both proceduraland substantive.
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!C" )n 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. 2e may look for his value premises in the statutory
provisions, cases, history in his own rationality and meaning of /ustice. 2e
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 /udges always unconsciously or without admitting think of
the social utility of their decisions, but cases are also not infrequent when
the Indian *upreme 9ourt has consciously and deliberately incorporated
social values in the process of its reasoning. To take a few examples here, in
!engal 0mmunity 'o* v* State of !ihar , @+ the court, while overruling State of
!ombay v* 3nited &otors,@3
stated=
)ll big traders will have to get themselves registered in each *tate,
study the *ales Tax )cts of each *tate, conform to the requirements of
all *tate 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 *tate. )nybody who has any
practical experience of the working of the sales tax laws of the different
@+. )IR +DCC *9 EE+
@3. )IR +DC> *9 3C3
*tates knows how long books are detained by officers of each *tate
during assessment proceedings.... The harassment to traders is quite
obvious and needs no exaggeration.
In Jyoti (ershad v* 3nion Territory of 5elhi,@>
the *upreme 9ourt observed=
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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
ad/ustments 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 /udging of their validity the 9ourts 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 ad/ustment and thus furthering the ,moral and
material progress of the community as a whole.
In the famous 2olak 6ath v* State of (un8ab,@@
*ubba Rao, 9.(., said=
ut, 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 *tate lt. therefore,
preserves the natural rights against the *tate encroachment and constitutes
the higher /udiciary of the *tate as the sentinel of the said rights and the
balancing wheel between the rights, sub/ect to social control.
The court#s concern with social /ustice is depicted forcefully in following
observations of hagwati, (., in )anwarlal v* -marnath@C
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
@>. )IR +DE+ *9 +E73
@@. )IR +DE8 *9 +E@>
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@C. )IR +D8C *9 >7F
ould 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 1equal1 voice and some
candidates are denied an Lequal 9hance#&. 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.
() ORAL ADVOCACY:
+. hat Should ;ou Try To -ccomplish ith 1ral -rgumentG
). 4on#t /ust repeat your brief. Jse the medium of personal argument to
accomplish things you cannot do with a written brief=+. e more personal and interactive -- have a conversation with the
court about the case.
3. e more graphic -- use more personal language.
. )ddress and resolve the court#s concerns about the case
9. 9reate a moodNtheme that makes it easier for the court to accept you
theory of defense.
+. 4on#t /ust repeat your legal theory.
3. 5ake the fairness of reversal the keystone of your argument.
>. *how the court in human terms why it is right for them to rule in
your favour.
a. 4evelop the emotional theme that will make the court feel
good about reversing.
b. Jse the most important facts of your case to reinforce your
emotional theme.
R0QJ0;TP )*
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)ppellate /udges always say that they don#t want us to talk about the
facts and they don#t want us to make emotional argumentsG
);*0R T: )Q=
*ure they say that. They learned that in the same law school classes
we did. ut /udges are notoriously unaware of what persuades them. )nd
/udges, 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. e win a lot more cases when we convince the court that
reversing is the fair thing to do. )nd fairness is a factual and emotional
argument -- not a legal doctrine.
3. 'omponents of a Successful 1ral -rgument
A. T# F'r& 37 S#co$" T# !o& I1/or&a$& Par& o+ Yo%r Ar6%1#$&
The first >7 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 /ump in with questions about whatever they think is
important. Then you will be stuck spending the entire argument discussing
issues defined by the court. 0ven 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. e sure to use it that way.
+. *tart by telling the court what went wrong at trial. hy was the
conviction unfairG
a* e direct
b* e factual
c* e graphic
d* e concise
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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.
3. 4on#t waste time by starting your argument with empty
formalisms=
E8: 5y name is my client#s name is my client was
convicted of he was sentenced to .
B. A+r Yo%r O/#$'$69 G#& &o &# Po'$& o+ Yo%r Ar6%1#$& 5%'c0;
+. 4ecide what is important -- you don#t have to include everything
that was in your brief.
3. )ddress the issues you need to win.
a. 4on#t run away from the tough issues.
b. If preservation or harmlessness is an issue, but sure to
address it.
>. e 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. Do$
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2. 4on#t talk like a cop.
>. -nswering
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+. ;ever say, %that isn#t our case.& The court knows this.
3. 4on#t be thrown off by the stupidity of the hypothetical.
>. )nswer the hypothetical in a way that is consistent with winning
your case.
@. 4on#t be afraid to agree with the questioning /udge on aspects of
the hypothetical that don#t hurt your case.
C. Remember that it#s :< to point out that the hypothetical is based
on a faulty premise.
@. Rebuttal -rgument
A. 4on#t use this as a game of %last tag .&
:nly rebut if there was something in the *tate#s argument that you
believe should be answered. or example=
+. 5aterial misstatements of fact.
3. 5aterial misstatements of law.
>. )n argument for which you have a clear, strong refutation.
@. The prosecutor falsely accuses you of misconduct.
B. :nly use rebuttal on sub/ects that are important to the case.
C.
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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.
+. e respectful, but not overly deferential.
3. :nly flatter the court when they earn it.
B. ))P* 0 2:;0*T );4 *TR)IO2T:R)R4 IT2 T20
9:JRT
+. 4on#t euphemi?e, sugar-coat or minimi?e the crime.
NOTE: ;ou can minimi4e the impact of the crime facts by
being straight forward, but using dull language.
3. )nswer all questions directly.
>. );*0R ) QJ0*TI:;* 2:;0*TP
@. *how some class. 4on#t make personal attacks on the prosecutor
or trial /udge.
$$$$$$
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CONCLUSION
It is obvious to elucidate that Legal
Research# plays very vital role in the enactment of
new statutes meant for *ocio-egal development and
enforcement and refining the society from all the
social evils. egal 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 ;ation as a
whole. Through the intensive study made on the
sub/ect, 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 ;ew Oeneration to meet the new golden era
in law.
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CASE LAWS CITED:
S.No
.
Ca# La= Jo%r$a0 > P6 No. R#+#rr#"
'$ P6 No.
+. 6. Rathinam ;agbhooshan 6atnaik v. Jnion
of India and another
)IR +DD@ 6g. +F@@ 7F
3. Oian *99 >D@ 7D
@. *ri *hankeri 6rasad *ingh 4eo As. Jnion of
India !J:I" and *tate of ihar
)IR +DC+ *.9. @CF +7
C. Sajjan Singh v. State Of Rajasthan )IR +DEC *.9.F@C +7
E. I.9.Oolaknath and ors. v. *tate of 6un/ab
and )nrs.
)IR +DE8 *.9.+E@> +7, 3@
8. 2is 2oliness
+>. *tate of ombay v. Jnited 5otors )IR +DC> *.9.3C3 3>
+@. (yoti 6ershad v. Jnion Territory of 4elhi )IR +DE+ *9.+E73 3@
+C. 7F 3@
http://indiankanoon.org/doc/1308308/http://indiankanoon.org/doc/1308308/http://indiankanoon.org/doc/1308308/
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BOO,S REFERRED:
=> $egal %ducation and Research ðodology by 4r. 5ono 6urohit,
'entral $aw (ublications
?> *ir illiam 2oldsworth, - .istory of %nglish $aw, Aol. BIII at +3C
!+DEE reprint".
@> 0dward.*.9rowin, The 'onstitution and hat it means Today,
6reface at A !+3th 0dition, +DCF"
@" 6.5.akshi, $egal Research and $aw Reform, II, irst Reprint
377E.
C" 6rof !4r." E> !+D8>"+C"
3+" 2anson, *haron, $egal ðod and Reasoning !ondon= 9avendish,
377>" pp. 3+C-3EF
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33" *hipra )garwal, $egal Research ðodology, +st 0dn. 377>,
(ublished by *ri *ai aw 6ublications, 2aryana
LE8ICANS REFERRED:
!+" 6. Ramanatha )iyar, 'oncise $aw 5ictionary, adhwa ;agpur, >rd
0dn. !Reprint 377F."
!3" harton, 'oncise $aw 5ictionary, Jniversal aw 6ublishing 9o.,
+Cth 0dn. !377D"
!>" !lack/s $aw 5ictionary
STATUTES REFERRED:
!+" The 9onstitution of India
!3" The Indian 6enal 9ode, +FE7
!>" The 9ode of 9riminal 6rocedure, +D8>
JOURNALS REFERRED:
!+" )ll India Reporter !).I.R"
!3" *upreme 9ourt 9ases !*99"!>" 5adras aw (ournal !5("
WEBSITES REFERRED=
!+" www.indiakanoon.org
!3" www.lawteacher.net
!>" www.lawyersclub.com
!@" www.ebc-india.com
!C" www.chilot.wordpress.com!E" www.aallnet.org
!8" www.law.auckland.ac.n?
!F" researchguides.library.yorku.ca
!D" www.manupatra.co.in
!+7" legalresearchprinciples.pbworks.com
!++" sociolegaldcu.wordpress.com
http://www.chilot.wordpress.com/http://www.aallnet.org/http://www.law.auckland.ac.nz/http://www.manupatra.co.in/http://www.chilot.wordpress.com/http://www.aallnet.org/http://www.law.auckland.ac.nz/http://www.manupatra.co.in/
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ARTICLES REFERRED:
D=> Jan !& Eranken, 5ethodology of egal 4octrinal Research= )
9omment on esterman.!3" 6arendra &an Shrestha, Importance of egal Research 5ethod for
egal 6rofessionals.
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