KINDS OF LEGAL RESEARCH

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This article is written by Raghuvansh Singh Kalyani of 2^nd Semester of LLM of Veer Madho Singh Bhandari Uttrakhand Technical University, Dehradun, an intern under Legal Vidhiya

ABSTRACT:

‘Research’ – a practice that we follow in our daily life. From researching about brands, clothing, educational and job opportunities, the process is repeated on a regular basis. If not consciously then definitely sub-consciously. Many may participate in this process and if not, the results of such outcome may have a direct or an indirect impact on the lives of many. The policy makers also go through elaborate research as a part of their job to inquiry into the desirable changes.

The process of research is a scientific investigation aimed to increase knowledge. It is a process of investigating a ‘fact’ to acquire insight into it and finding a solution to therefor. If such an investigation is pursued with scientific methods, it becomes systematic. With this view, legal research is a systematic finding law on a particular topic and making an advancement to the literature of it. However, this process is complex as it involves looking into a plethora of law available as statutes, legal materials and judicial pronouncements etc.

Hence, research is of crucial importance to home-makers, scholars, government, policy makers, students, academicians, advocates and even judges like everyone else. And the process becomes systematic to achieve desired results and to avoid absurdities by following scientific methods.

KEYWORDS:

LEGAL RESEARCH, RESEARCH, KINDS OF LEGAL RESEARCH, LAW STUDENTS, JUDGES, ADVOCATES.

INTRODUCTION:

The term ‘research’ means to discover. It is a scientific way following specific methods to delve into a problem to find useful outcomes. It is a scientific investigation. It is a process of elaborate and detailed discovery about even the minute details of the matter. The purpose of research may be either to find or make a discovery about something or to make a significant contribution in the existing state of literature or knowledge about a subject. The ‘re’ prefixed before ‘search’ implies a verification or supplementation to existing knowledge. However, meaningful outcomes can only be achieved if the research is not directionless, unspecific and unsystematic.

The purpose of research includes but is not limited to the following:

To address a specific issue or a question;
To contribute to existing knowledge or literature in a discipline; and
Policy making etc.

OBJECTIVE:

The objective of this article is to give a broad perspective to the audience about the what? And how? of legal research. The main aim of this article is to make a layman understand in simple terms as to what is legal research and why is it conducted and what are its types.

LEGAL RESEARCH AND ITS TYPES

LEGAL RESEARCH- MEANING:

Legal Research is a scientific investigation in the field of law. It is a process of making discoveries and adding to the already existing state of law. It is the process of studying the law to find legal answers to legal queries. It includes a systematic finding or ascertainment of law on a given topic or area, or an inquiry in the law with a view of making advancements to the literature of the law.

Legal research also implies ascertainment of an assumption or a hypothesis by scientifically investigating into the available information and gathering evidence to it. The process is not just limited to the ascertainment of the technicalities of the law but to also contribute to the philosophy, by finding out philosophical and policy related arguments to it. It has a broad ambit and is done constantly by lawyers, judges, academicians and law students for an in-depth understanding of the nature of legal problems.

PURPOSE OF LEGAL RESEARCH:

Law does not operate in a vacuum. It is dynamic and ever changing. It not only reflects the attitude and behavioural norms in a society but also controls and mould them. With the complexities of the modern society, it becomes often more so necessary to conduct legal research to ascertain the law on a given legal query. As the needs and norms of a society change with time and space, the law has to become even more dynamic to adapt to the changes. Legal research becomes even more of a complicated task when the inquiry in a legal question involves research into the whole literature of law that includes a plethora of acts, statues, amendments, bye-laws, orders, ordinances and customs etc. One of the main objectives of legal research is to expound on the various aspects of the legal system, the legislature and also the judiciary. It also aims to find out the nature and functions of law in society. It is therefore crucial and becomes essential to point out the weaknesses and ambiguities in law so that a clear ascertainment of law in the area is done to ensure coherence, consistency, social-audit, stability, underlying policy and to suggest reforms in law. Hence, the process of research is to critically examine the law for below explained reasons and is not exhaustive:

Ascertainment of Law:

The law related and available to a legal query might be scattered and even a single issue may involve an application of various laws. In a complex mass of legal statues coupled with legal material it becomes strenuous to find complete law on a particular topic. Not to mention, judicial pronouncements adds even more to the complexity of the research. Hence this process involves an extensive research and critical analysis of legal instruments and judicial pronouncements.

Highlighting ambiguities and gaps:

The law is not designed to answer every contingency that may arise in future and also sometimes the language and phraseology used may not fit with the legislative intent or match with other provisions of the Act. Hence, research becomes necessary to highlight these ambiguities and gaps.

Determining Coherence, Stability and Consistency:

Its only by critical analysis of the law that a researcher can exhibit coherence, consistency and stability in the law. This helps in the design and development of law.

Social-Auditing of Law:

It is a pre-legislative step to understand the factors in the society that had an impact in making of the law. This helps in identifying the gaps in legal ideals and social reality and to know the reasons thereof.

Suggesting Reforms:

Legal research becomes even more necessary when reforms are to be suggested to existing state of laws. It could be via historical, philosophical, analytical or comparative methods.

SOURCES OF LEGAL RESEARCH:

There are two major sources of Legal research. They are classified as Primary and Secondary.

Primary Sources: Primary sources are authoritative records of law and are key to legal research. They establish the general source of law as it is made by the legislation or the law making authority. Primary sources include law and statutes (by central or state legislation), orders, ordinances, bye-laws, treaties, rules and regulations, case laws and authoritative decisions of the Courts.
Secondary Sources: sources which explains or interprets law in details while not being a primary source falls under the category of secondary sources. It also summarizes the law providing a better understanding of the complexities. They include reports, journals, manuals, digests, commentaries, books by learned authors and jurists, magazines and newspapers, abstracts, online sources, dictionary and encyclopaedia etc.

TYPES OF LEGAL RESEARCH:

The types of research are classified into many categories but usually they are studied as a comparative analysis for a better understanding. They are as follows:

Descriptive and Analytical Legal Research:

Descriptive Legal Research focusses more on the ‘what’ rather than ‘why’ of the research subject. It describes the characteristics of the phenomenon that is being studied. It focusses on the state of affairs as it is. Without giving the causes for the same it studies the phenomena reporting what has happened and what is currently happening. To tools used in such research method are fact-finding enquiries, surveys, comparative and co-relational methods. However, it does not seek to establish any relationship between the variables.

Analytical Research on the other hand, involves a critical evaluation of available facts and information. It is a style of qualitative inquiry. It is more specific research that involves critical thinking skills.

Applied and Pure Legal Research:

The main aim of an applied legal research is to find a solution to a legal problem at hand. It is a straight-forward practical approach. The results of such research is applied in a practical context. It is full-fledged research on a specific area of law which involves gathering useful information about the technical concepts and principles of law involved and also forming an opinion keeping in mind the prospects of the client.

However, Pure Legal Research aims at generalization and formation of a legal theory. It is also known as basic legal research. The main aim is to broaden the understanding about a particular area or a subject upon which the research has been conducted. Such results may not be utilized in a practical context but definitely contribute to the theory of the literature.

Quantitative and Qualitative Legal Research:

Quantitative Legal Research is a tool that is used to collect data and describe the nature of the demographic content. It attempts to collect quantifiable amount of data for research which is used for statistical analysis. The methods used in such research are surveys, polls, questionnaires etc. the result of such an analysis is depicted in numerical form.

However, in Qualitative Legal Research the data for research is collected from relatively small group of subjects. The data is usually in the form of a narrative and is not analysed with statistical techniques. The various methods used in such research are narratives, story-telling, ethnography and grounded theory practice. It is a method to study people or system and their behavioural aspects. It involves a regular interaction with and observation of the subjects.

Conceptual and Empirical Legal Research:

A Conceptual Legal Research doesn’t involve practical experiments. In this method the research is conducted by analysing and observing the data and information already present at hand on a given topic. It is related to abstract notions, concepts and ideas. This method is generally adopted by philosophers and thinkers to either develop new concepts or to re-interpret a particular theory or concept.

Empirical Legal research on the other hand, relies upon observation and experience. The results of such research can be verified by observation and experiments. It is multi-disciplinary method of research which involves other domains other than legal such as social sciences, evaluation studies and big-data analysis.

OTHER MAJOR METHODS OF LEGAL RESEARCH:

Apart from the methods that are discussed above there are other major methods of legal research as well. They are:

Doctrinal Legal Research:

This is a subjective form to legal research. It involves research which is limited to the perception of the researcher rather than the actual practice of law at the Courts. The main aim of this research is to find ‘what is the law?’ on a particular issue or subject. It concerns with finding the law followed with a critical analysis to give a logical explanation behind it. The basic material involved in such research is statutory i.e., gathered from primary sources and also from the secondary. The results of this research contributes immensely to the continuity, consistency, coherence and certainty of law.

Non-Doctrinal Legal Research:

This method is also known as socio-legal research. This method of research transcends its boundary of being limited to just the legal technical aspects and overlaps with the society. The results of this research is an empirical value that is obtained with an active involvement of methods from other discipline. This facilitates the process of keeping law growing and organic by viewing it from the perspective of a different discipline. It is hence vital in explaining the impact of law and legal practice and procedures on societal institutions like family, business, etc.

Comparative Legal Research:

This method involves a comparative analysis of legislations and doctrines with foreign laws. This method is crucial because it plays a vital role in amendment, modification and development of law. The social and cultural character of law and how it operates in a different setting comes into play in this method. But before adopting methods from a setting with completely different cultural and social character it is advised to be cautious as they may not operate in the same manner in a different setting.

MAJOR PROBLEMS IN LEGAL RESEARCH:

While the process of legal research is crucial but sometimes a researcher may encounter certain problems while collecting the data for research nor conducting experiments and observations that include surveys and polls. Some of the major problems are:

Cultural Problems;
Structural and procedural (unsympathetic attitude of authorities);
Lack of resources;
Incompetence or inadequate planning; and
Lack of networking and forums.

CONCLUSION:

Every method that is employed in legal research has its own importance. The process of legal research is vital and also crucial because law doesn’t operate in a vacuum. Law and society both have an interaction with each other every now and then. Legal Research makes suggestions for the improvement of legal system and also social welfare. It aims for the advancements in the field of law. It opens new avenues for further research. Sometimes the researcher may come across hurdles while conducting such research but they can be avoided by adequate planning of the process.

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