Introduction:
According to the Oxford Advanced Learner’s Dictionary, research means ‘a careful study of a subject, especially to find or discover new facts about it’. Research therefore involves gathering information for a purpose, and it is the purpose that usually determines the type of research undertaken and how it is conducted. “The acquisition of knowledge is the mission of research, the transmission of knowledge is the mission of teaching, and the application of knowledge is the mission of public service.” – James A Stafford.
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Research is typically an intimidating task, and the style adopted may vary according to the educational system, the administrator, or even the canvasser, as, like many other tasks, nascent a individual style is the most important factor to enjoying the procedure and achieving desired outcome.
When we start research, we usually look for an answer, a solution, a result. This means that we begin from a tip of not knowing or of wanting to discern more, and we usually have what we call a research question. The research problem raises the interrogation that the research seeks to chase. A research question is not always clear-cut since it might raise more than one point for contemplation or interrogation, but it is usually a very fundamental step from which to instigate a research project.
Legal Research:
• Legal research would, in a similar layer, involve the set of legal resources for discovering fresh facts that would add to the body of knowledge in a legal field or subject. Legal research defined by legal studies since it is the materials that are used in legal studies and the topics that are taught and learnt that determine legal research. In a similar light, legal studies are also defined by legal research as the discoveries of legal research shape legal studies.
• Legal Research Methodology may be applicable for interpretation or Acts , analysis of codes;understanding of any problem of Legal Philosophy, Legal History, Comparative study of Law (to compare laws of different countries, or to compare more than two municipal laws of the nation), or any system of positive law, or to know the consequence of execution of law, or belongings of that law on the society.
• It is also very essential for writing text and teaching, for ascertainment of the correct rules bounded by their limitations.
• The methodology of legal studies involves their own rules. Thus independent study of legal methodology is required,
• The legal research basically involves two sources:
Legal Sources and Non-Legal Sources
1) Legal Sources
a) Primary authority of law Primary authority constitutes the law. Bodies like the Judiciary, the Legislature, and administrative agencies. E.g., Cases, Statutes, Regulations, Codes etc. declared by primary authorities are the best legal source.
a) Secondary authority of law — Commentary of Non-Governmental bodies comes under this category. Reports, Encyclopedias’, Journals, Legal Treaties, Dictionaries, etc.
2) Non Legal Sources — To get supporting information legal research takes help from non legal source such as life style of people, memories, experiences etc.
The main methods which legal research scholar tries to follow are
a) Study the system of values: First, researcher should study the values of society from which the law is derived. For example to understand the object of Dowry Prohibitions Act, you have to know the values of Indian society and family.
Study the practice of law: Practical applicability is important in law. To know, does the practice follow the principles of law? Researcher can study the practice of law by analyzing the law.
TYPES OF LEGAL RESEARCH:
(a) Historical Research,
(b) Doctrinal Research (or) Traditional Research,
(c) Non-Doctrinal (or) Socio-Legal (or) Empirical Research,
(d) Comparative Research,
(e) Induction and Deduction Research,
(f) Other Kinds of Research,
(g) Case Law Analysis,
(h) Oral Advocacy.
(a) HISTORICAL RESEARCH: Historical Research means “Finding out the previous law in order to understand the reasons behind the existing law and the course of its development.”
Jeremy Bentham stated “we are told, had scant respect for history and contributed little to an understanding of legal and social change in a continuum.”
(b) DOCTRINAL RESEARCH (OR) TRADITIONAL RESEARCH: Doctrinal or theoretical legal research can be defined in simple terms as research which asks what the law is in a particular area. Doctrinal legal research deals with Legal Rules, principles, concepts or doctrines. It involves a rigorous systematic exposition, analysis and critical evaluation of legal rules, principles or doctrines and their inter-relationship. It arranges the existing law in order and provides thematic parameters for such an order. It also concerns with critical review of legislations and of decisional processes and their underlying policy.
(c) NON-DOCTRINAL (OR) SOCIO-LEGAL (OR) EMPIRICAL RESEARCH: All other [non-doctrinal] legal research can be generally grouped within three categories: problem, policy and law reform based research. It is accepted that these categories are not mutually exclusive and are identified in terms of an assessment of what a piece of research is largely about.
(d) COMPARATIVE RESEARCH: The comparative legal research is used to study legislative texts. Jurisprudence and also legal doctrines, particularly of foreign laws. It stimulates awareness of the cultural and social characters of the law and provides a unique understanding of the way law develops and works in different cultures33. It also facilitates better understanding of the functions of the rules and principles of laws and involves the study of detailed knowledge of law of other countries to understand them. To safeguard them, or to map out their advancement. Accordingly, comparative legal research is beneficial in at legal development process where modification, amendment and changes to the law are required.
(e) INDUCTION AND DEDUCTION RESEARCH:
Induction and deduction
(f) OTHER KINDS OF RESEARCH:
1. Applied and Fundamental Research: Applied research (or) Action Research aims at finding a solution for an immediate problem. Here the researcher sees his research in a practical context. While in Fundamental Research (or) Pure Research (or) Basic Research, the researcher is mainly concerned with generalization and with the formulation of a theory. He undertakes research only to derive some increased knowledge in a field of his inquiry. He is least bothered about its practical context or utility. Research studies concerning human behavior carried on with a view to making generalizations about human behavior fall in the category of fundamental or pure research. But if the research (about human behavior) is carried out with a view to solving a problem (related to human behavior), it falls in the domain of applied or action research.
2. Statistical Research: This kind of research is very noteworthy in the area of science especially Economics, Commerce etc. But so far as law is concerned, it can be said without doubt, that this will be of some help only for suggesting law reform. However, there are people who are of the opinion that this kind of research may be applied in the field of law as well. The most difficult aspect of this kind of research is the collection and examination of statistics. It is a specialized function. A person having no knowledge of statistical activity; cannot undertake this kind of research. However, in limited areas requiring simple statistics, this process may be applied, e.g., in the area of land reform; disposal of pending cases by the court enhancement in wages, and other monetary benefits etc.
3. Critical research: As we know that the purpose of legal research is not only to propose suggestions for legal reform. It may be carried on for many other purposes as well. Where, however, the object of research is only to indicate in which way it is to be carried on, such a research is termed as critical research because in such cases the objective is to ascertain a common principle or norm and hence, it is also termed as ‘normative research’ . In this kind of research gathered material is thoroughly examined and a common thread is ascertained which ultimately becomes the basic norm.
4. Quantitative and Qualitative Research:
BASIS FOR COMPARISON QUALITATIVE RESEARCH QUANTITATIVE RESEARCH
Meaning Qualitative research is a method of investigation that develops understanding on human and social sciences, to find the way people think and feel. Quantitative research is a research method that is used to generate numerical data and hard facts, by employing statistical, logical and mathematical technique.
Nature Holistic Particularistic
Approach Subjective Objective
Research type Exploratory Conclusive
Reasoning Inductive Deductive
Sampling Purposive Random
Data Verbal Measurable
Inquiry Process-oriented Result-oriented
Hypothesis Generated Tested
Elements of analysis Qualitative research, in very general terms, refers to non-numerical research, which is usually categorized as theoretical which includes
Words, pictures and objects. Quantitative research is research that has to do with the collection and analysis of Numerical data.
Objective To explore and discover ideas used in the ongoing processes. To examine cause and effect relationship between variables.
Methods Non-structured techniques like In-depth interviews, group discussions etc. Structured techniques such as surveys, questionnaires and observations.
Result Develops initial understanding Recommends final course of action
(g) CASE LAW ANALYSIS: In the case-law method of research much creativity goes on is shown by Cardozo in his work, The Nature of the Judicial Process. His thesis is that law or legal propositions are not final or absolute but are in the state of becoming. He quotes Munroe Smith:
The rules and principles of case law have never been treated as final truths, but as working hypotheses, repeatedly retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which felt to be unfair, the rule is reconsidered. It may not be customized at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will finally be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must eventually be re-examined.
‘Case-Law’ consists of rules and principles stated and acted upon by the Judges in giving decisions. Like English Law, Indian Law also is largely a system of Case Law. That is the decision in a particular case constitutes ‘Precedent’. According to the ‘Doctrine of Precedent’ it is not the whole thing said by a Judge, when giving judgment that constitutes precedent. But only the reason of the decision given in the judgment constitutes precedent. So the reason stated in the judgment of an appeal case becomes a necessary subject matter of inquiry and analysis by a lawyer. This requires recognition of the most important parts of the judgment. They are:
(1) A report 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.
(2) A statement of a relevant procedural details such as the justification of the legal nature of the controversy and of the remedy sought,. The actions and the ruling of the lower court.
(3) A statement of narrow legal question or issue(s) that the appellate court was asked to resolve.
(4) A brief statement of the Appellate Court’s decision, both procedural and substantive.
(5) An explanation of court’s reasoning in reaching its decision.
In the famous Golak Nath v. State of Punjab, 44 Subba Rao, C.J., said:
But, having regard to the past history of our country. it could not completely believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State lt. therefore, preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the guard of the said rights and the balancing wheel between the rights, subject to social control.
(h) ORAL ADVOCACY:
A. Don’t just repeat your brief. Use the medium of personal argument to accomplish things you cannot do with a written brief:
1. Be more personal and interactive -- have a conversation with the court about the case.
2. Be more graphic -- use more personal language.
B. Address and resolve the court’s concerns about the case
C. Create a mood/theme that makes it easier for the court to accept you theory of defence.
1. Don’t just repeat your legal theory.
2. Make the fairness of reversal the keystone of your argument.
3. Show the court in human terms why it is right for them to rule in your favour.
1. Develop the emotional theme that will make the court feel good about reversing.
2. Use the most important facts of your case to reinforce your emotional theme.
Components of a Successful Oral Argument
1. A. The First 30 Seconds -- The Most Important Part of Your Argument
2. After Your Opening, Get to the Point of Your Argument Quickly.
3. Don’t Take Impossible Positions.
4. Use clear, graphic, descriptive language.
5. Answer hypothetical questions directly
a) Never say, “that isn’t our case.” The court knows this.
b) Don’t be thrown off by the stupidity of the hypothetical.
c) Answer the hypothetical in a way that is consistent with winning your case.
d) Don’t be afraid to agree with the questioning judge on aspects of the hypothetical that don’t hurt your case.
e) Remember that it’s OK to point out that the hypothetical is based on a faulty premise.
6. Rebuttal Argument
A. Don’t use this as a game of “last tag.”
Only deny if there was something in the State’s argument that you believe should be answered. For example:
1. Material misstatements of fact.
2. Material misstatements of law.
3. An argument for which you have a clear, strong refutation.
4. The prosecutor wrongly accuses you of delinquency.
B. Only use disproof on subjects that are valuable to the case.
C. Keep it short and focused on the prosecutor’s statement that you are rebutting.
D. If possible, quote the record as the source of your rebuttal.
E. Don’t personalize it.
Components of Legal Research Proposal
- Abstract – This is a précis of the research, which is usually between 200 and 300 words. It contains a common statement about the vicinity of research, introduces the problem to be addressed by the research and contains a hypothesis. An abstract is usually the first guide as to the asset of a particular research work, and can form the basis for accepting the scheme.
- Statement of the Problem – This provides a background of the main issue for contemplation in the proposed research and identifies the problem to be addressed. Remember that research must have a object so this introduces the purpose of the particular research project.
- Objectives of the Research – After stating the problem, the researcher must state how the proposed research will address the problem in a way that adds value. Such value may be added through the introduction of policy mechanisms or recommendations, or by adding to the body of knowledge on a particular issue. Sometimes, a distinction may be made between the aims/objectives and the significance of the work, the former stating the importance of the research and the latter its actual tangible contributions.
- Research Problem and Hypothesis – The research question, as the initial stage of the research process, sets the researcher on the voyage and begins the inquiry. After determining the research question, and sub-questions, the next step is to begin to collect information to shape the direction of the research. During this period, the research question may be modified as the researcher gains more knowledge about the selected field, and it is at this point that the researcher frames the hypothesis and begins to adopt the methodology.
- Methodology – The methodology determines the process which the researcher intends to adopt in the gathering of information. This describes how the research is going to be conducted, either by means of interviews, or through the use of study materials, which may be primary or secondary sources, internet searches, or field research.
- Scope-This provides a ‘plan’ of what the research work will do and how it will do it. Usually, the scope points out the areas that the research will address, and presents a structural ordering of how it will address those issues. The scope is a very important part of the research as it provides a outline that guides the writer, and eventually the reader, in addressing the work.
- Sometimes, the plan or proposal may also include a table of contents which provides a graphical outline of the entire work, depicting chapters, sections, sub-sections and so-on. The table of contents should usually provide all the information about the content of the work, so that, if properly written, it can guide a reader in making quick and accurate assessments about the substance of the work. The above discussion is an preface to the general concepts that the researcher will have to contend with when starting a research project. During the rest of the course, citation will be made to some of these concepts, and practical exercises will be employed to enhance understanding.
Development of Legal Research-Legal research therefore involves three very important processes:
- The first of which is finding the relevant sources. This can be done in a library, at a law office or government office, online, or anywhere that the lawyer can find authentic legal sources. Finding the right materials is a very important step, because knowing what to look for can ‘make or break’ the resulting document. The law student or lawyer can be assisted here by a reliable law librarian or research assistant with a good general knowledge of available sources on different legal subjects.
- After finding the materials, the lawyer must know how to use them, that is, he/she must know how to find the relevant information from the sources which he/she has. There are different ways to get information from sources, and if the researcher does not know where or how to look within any particular source, then he/she might get little or no information from the correct source, or end up collecting irrelevant or wrong information.
- Even where the researcher has found the right source and the right information, they must know how to use that information. Important issues such as citation, language and arrangement, among others, can greatly reduce the value of the hard work of a researcher.
Importance of Research to Legal Studies and Practice
- Lawyers spend a huge share of their time reading and writing, preparing briefs, reports, script, and they hold in numerous writing projects/ tasks.
- It is significant, therefore, to make sure that the written work created by a law student or a lawyer is up-to-date or advanced and structurally accurate, since the work of the advocates goes a long way to shaping agreements and policies for public and private sector organizations or institutions.
- The research materials relevant to lawyers for the execution of their jobs are mostly documents that deal with legal issues, such as legislations, case reports, and legal agreements. During their legal training period, lawyers learn where and how to find these materials which are known as sources. That is after finding these sources that the lawyer can develop their document based on relevant information collected from the sources.
Development stages of Legal Research
When research is well-undertaken and accomplished, it can produces understanding material that is expected to contribute to the body of knowledge in any particular field of legal studies and practice. Legal research is important for the following reasons:
a) Discovery: Research is all about discovery. From beginning to end, research, the law student or the lawyer discovers new arguments, legal provisions, positions on related topics, and novel ways of doing things. Research can also disclose new aspects and approaches to old issues. For example, where a general idea has been developed on a particular issue, effective research can enable the researcher discover and expose new perspectives on such issues.
b) Amplification: Good research helps the researcher to make clear their ideas on issues relevant to their work. Where a researcher is able to find reliable sources on an issue, these can make clear to the researcher, especially where there had been bewilderment or misconceptions about any issue.
c) Innovation: Effective research contributes to the general progress of knowledge, understanding and processes. Where a good law student or lawyer discovers new issues or errors in old thinking, they can reveal this constructively, so as to correct/clarify the position and advance knowledge in that area. This is a very important way legal systems have developed over time.
d) Comparison: Research helps compare different ideas, especially where they are conflicting. It develops the researcher’s analytical skills by providing them with different ways of addressing any particular issue. It also helps compare different sources, documents, and even legal systems. This broadens the scope of the researcher’s thinking, helping them discover more, clarify issues and advance theirs and general knowledge.
e) Authentication: Research is important for the purpose of validating the thoughts & ideas of the researcher. While thoughts and opinions are generally expressed in different for a, when research has been undertaken on a particular issue, the results of the research possess a considerable level of authenticity, depending on the quality of the research, which mere thoughts and opinions may not possess.
There are several more reasons why research is important to the law student or lawyer, especially since the job of the lawyer in an adversarial system is to build his case and fall that of his opponent. Research helps the lawyer find material to do this, and when combined with strong analytical skills, success is practically guaranteed.
Conclusion
- You’ve done the research and you feel confident of your perceptive of the issue.
- The Economic Analysis or Diminishing Return Rule-When you are investing more in your research than you are getting in return.
- Every research process will differ. You could have knowledgeably explored more or less legal resources depending on what is at stake and the time and money available.
- You’ll be a victorious researcher if you understand how to use a lot of resources that are available in a flexible and well-organized manner.
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