Types of Legal Research Needed for Law r (1)

8/20/2019 Types of Legal Research Needed for Law r (1)

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“Types of Legal Research needed for Law Reform” by

Sanjeyvignesh.J , Page 2 of 41

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


23/41



+" 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 &ethod 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:


25/41



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


26/41


27/41



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 &ethodology, +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.


28/41



!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=


29/41



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@>


30/41



@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 )*


31/41



)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


32/41



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$


33/41



2. 4on#t talk like a cop.

>. -nswering


34/41



+. ;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.


35/41



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.

$$$$$$


36/41



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.


37/41



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/


38/41




39/41



BOO,S REFERRED:

=> $egal %ducation and Research &ethodology 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 &ethod and Reasoning !ondon= 9avendish,

377>" pp. 3+C-3EF


40/41



33" *hipra )garwal, $egal Research &ethodology, +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/


41/41



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.

!>" -leksander (ec4enik , egal Research and Orowth of *cience.

!@" 9linch, 6eter !377+" Jsing a law library= a student1s guide to legal

research skills. ondon, lack tone 6ress. >@7.787@3 9I.

!C" inch, 0. and afinski, *. !37++" egal skills. :xford, :xford

Jniversity 6ress. >@7.78++.

!E" ) 6ractitioner#s Ouide to 0ffective :ral )dvocacy efore the

5ichigan *upreme 9ourt ith Special Tips from !en8amin ranklin

y 5ary 5assaron Ross.

!8" 6ersuasive :ral )rgument, Ira 5ickenberg, 6ublic 4efender Trainer

and 9onsultant.

Documents

Types of Legal Research Needed for Law r (1)