This article has been written by Neha Dahiya. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).
Table of Contents
Introduction
The research basically means searching for something again and again until we reach an unequivocal conclusion. It is a systematic investigation that entails the collection of data, critical information, arranging it all and then analyzing it to deduce something meaningful. The word “research” is derived from the French word “recherché” which means to investigate thoroughly. So whenever research is being conducted, be it in any field, it involves going into the depth of the topic and making sense of it.
Legal research in particular dives deeper into the legal ocean. It is all about searching and researching laws, their origin, their application and everything else that can have the slightest nexus with the legal sphere. We try to search and analyze the effect of all the legal and non-legal variables on the process of legal decision-making. Black’s law dictionary defines legal research as “the finding and assembling of authorities that bear on a question of law”.(How to do legal research in 3 steps n.d.) Legal research is a constant companion of people involved in the legal world, be it the attorneys, judges, jurists, law researchers, law students and academicians. To possess the legal prowess and accumulate knowledge to effectively contribute in this arena, research is important for all of them.
Now, to conduct research different pathways can be adopted. These pathways are known as “research methodologies”. Methodology in research is defined as the systematic method to resolve a research problem through data gathering using various techniques, providing an interpretation of data gathered and drawing conclusions about the research data.(Bouchrika 2021) The two words method and methodology should not be used interchangeably. Method signifies the process of collecting the required information and the technique that is employed to achieve this objective.
Whereas, on the other hand, methodology implies not only the procedures involved to collect data but also how to analyze and interpret it. The methodology is a comprehensive term and is wider than the method. It is a compass that determines the direction of the research.
Two prominent methodologies that are employed in legal research are doctrinal and non-doctrinal. The former one is more inclined towards theoretical aspects and academics, hence also known as “library” or “arm-chair” research. While the latter is more practical and takes an interdisciplinary approach to observation. Hence it is also called “empirical” research.
Doctrinal research
Meaning and definition
Dr S.R. Myneni has defined, “A doctrinal research means a research that has been carried out on a legal proposition or propositions by way of analyzing the existing statutory provisions and cases by applying the reasoning power.” (Tiwary 2020)
Doctrinal research has the root word “doctrine” which means a principle or a basic governing tenet. That means, the legal doctrine would include legal principles and tenets that would govern the legal world. Therefore, it implies that doctrinal legal research would involve digging deeper into the legal principles and concepts from various sources like cases, precedents, statutes and others; to analyze them and reach valid conclusions.
The focal point of doctrinal research is answering the question “What is law?”. It is library-based research, i.e. we try to find out definite answers to legal questions through a thorough investigation from the law books, statutes, legislation, commentaries and other legal documents. All of these sources fall under the category of “Secondary Sources”. As stated earlier, it is theoretical research that does not involve any kind of experimentation or fieldwork.
Here, we are basically checking the validity of existing laws in light of a changing society. It begins with one or more legal propositions taken as a starting point and the entire research is directed in finding the validity of that hypothesis. It simply means reviewing and studying different legal documents and other sources and then deducing a complete answer to the question asked at the beginning by the means of rational interpretation and logical reasoning. Most often, the starting point in any research is doctrinal, i.e. library-based and then we move forward to other methodologies once our base is set by doctrinal research. This is the reason that doctrinal research is very famous among students and academicians.
History
The roots of doctrinal research can be traced to the positivist or the analytical school of law which was objective and value-free. It is more epistemologically oriented and does not concern itself with people or society. Though the law itself is normative, doctrinal research does not study it in a normative sense. It does not take into consideration the human aspects of law and how it affects people in society. In this type of research, we just concern ourselves with existing laws in the present state as they are. Its emergence can be traced parallel to the rise of common law in the nineteenth and twentieth century. Common law has been developed by the efforts of jurists and the Court’s decisions. The doctrine of precedents also developed around the same time. All of these developments are linked to doctrinal research as without it the other parallel developments would have been incomplete. It is when judges and attorneys investigated laws from various above-mentioned sources, that they could set the stage for the progress of common law.
And we all know, common law is the basis of legal development in several other countries. At a similar time, the law had entered the academic field in Europe and doctrinal research picked up pace as it became a popular tool of academic legal research. (Tiwary 2020) This is the reason why doctrinal research is also known as traditional research.
Purpose
One of the main purposes of conducting doctrinal research is solving the legal problems of bringing laws. For example, if the government decides to bring umbrella legislation for all the crimes committed against women, it may initiate doctrinal research by some jurists and experts in the field.
They may have to go through all the existing laws in this field, previous case laws, precedents, international trends, legal commentaries, articles by scholars, dictionaries, encyclopedias, journals, treatises, textbooks and other sources of legal information. Going through this sea of information, they would be able to answer all the questions related to this legislation and will be successful in bringing out comprehensive legislation.
It can be utilized for several other purposes as well like to help lawmakers develop meaningful and effective laws, develop fresh legal doctrines, aid courts in reaching effective and legally accurate judgments, help lawyers to interpret statutes and prepare their suits, help students in academia to set a base and many others.
Methodology
The methodology in doctrinal research starts with setting a proposition as the starting point. A legal provision in question or an existing law could be chosen for the purpose. The next step could be to analyze the purpose behind bringing that particular law. For example, for a provision of the constitution, Constituent Assembly Debates could give great insight.
The law then can be studied in greater detail. A course of action must be selected. Alternative courses can be explored. Different models need to be studied and finally, the consequences and approximated effects have to be weighed in order to accurately make predictions about the proposition set at the beginning. In all these stages, secondary sources talked about in the above paragraphs are utilized.
But one must be very careful in the selection of these sources. Searching for reliable and accurate sources demands time and effort. Useful information must be separated from the chaff as the presence of unreliable information could lead to misleading and inaccurately skewed results. The efficiency of this method also depends on the question that is asked in the beginning. Asking the right question is the first step towards concrete research. Setting the right proposition and then relying on the right sources is the key to successful doctrinal research.
Advantages and disadvantages
To begin with the advantages, doctrinal research forms the base of legal research in the academic field of law. Law students at the graduate and post-graduate levels usually venture into the world of legal research with the help of doctrinal methodology. This is the starting point for them where they can analyze sources available in the library and logically deduce their findings. The students are not well equipped at this particular stage to get involved with empirical research and to consider the law in the context of society. It is easier for them to study law “as it is” from secondary sources and it acts as a good starting point.
In addition, it gives the judges and lawyers the flexibility to approach law from different aspects and make its interpretation. It may not be wrong to say that the amorphous mass of the present-day statutory provisions takes concrete shape and form in the great laboratories of the law courts. (Jain 1982) Judges have over time developed law from their deep knowledge and investigation into the field. Law of torts is one great example as it is a “judge-made law”. Therefore, doctrinal research being the traditional methodology has helped in the development of legal research by giving it a base. It has been a close companion of law academicians, students, judges, advocates and jurists.
However, doctrinal research has its own shortcomings as well. Availability and choice of right and reliable sources is the bottleneck in doctrinal research. Logical deduction is also an uphill task. Furthermore, it is highly theoretical and restricted. Without the right direction, it may become highly objective and too mechanical. Moreover, it can be further highlighted that it studies law individually and does not consider it in the backdrop of society which is the playground of law. Without studying its normative and practical aspects, it’s like studying law in darkness and seems incomplete.
Non-doctrinal research
Meaning and definition
Non-doctrinal research, also known as social-legal research, is research that employs methods taken from other disciplines to generate empirical data that answers research questions. (Salim Ibrahim Ali 2017)
Non-doctrinal research takes a multi-disciplinary approach towards legal research. It employs methods and information available from other disciplines to make a comprehensive approach towards law. It employs primary sources of legal information to reach a conclusion. Primary sources may include observations, experiments, questionnaires, surveys, etc. With the help of these sources, we analyze the practical aspects of law like the effect of its implementation in non-legal fields and society as a whole. Basically, we take a legal variable which could be a law along with a non-legal variable like economic, social, political, etc. and study their relationship by data collected, which could be qualitative or quantitative. Its area of focus is how the law works in the real world.
History
After World War II, there was a growing emphasis on empiricism. Hence, the realist school of thought developed. The realist school of thought brings to the forefront, the concern that laws are made for the benefit and regulation of society. Laws are there to fulfil society’s needs. Therefore, they cannot be studied in isolation and must be developed as per society’s requirements. Society is dynamic and so should be the law. Law should be suited to the needs of the real world.
Non-doctrinal research developed out of the growing need of bringing the law into the realm of realism. It was felt that legal research should deal more with its practical application and how it functions and affects the life of people in real-world; and less with the theoretical aspect of studying written law.
Moreover, we have also seen that towards the same time, there was a growing emphasis on the welfare state model. It was believed that the state was meant to serve the society and all the laws that it brings must cater to this need of welfare of the citizens. In this background, there was a huge lift received by non-doctrinal research that helped in this direction. Governments have also encouraged this field of research to bring out legislation that truly help people and also to judge how well they have performed.
Purpose and methodology
The purpose of non-doctrinal research is to check the utility of a law that has been brought or how it impacts the non-legal aspects of society. Also, non-legal factors affect the implementation of the law. Sometimes, a very comprehensive law is brought but sometimes the environment is such that its effectiveness is shielded by those circumstances. For example, a law brought to open the market for foreign players to liberalize the economy may be considered very destructive at a time like that of a pandemic when the domestic market is hard hit by lockdown and would be considered devastating.
While in normal circumstances the same law might have been proved very useful for the economy. Now research may be sponsored by the government to check whether circumstances are conducive to bringing such a law. The research may include collecting data about the condition of the domestic market and how it will affect it if the law becomes a reality. Research after implementing the law can also be conducted to check its consequences and effects that it had actually brought. For this purpose, the help of other behavioural sciences can be taken. It relies on observation more than theory because under different circumstances theory remains the same but its practical application changes and it is important to keep a track of these changes to keep the law updated and effective.
The methodology adopted is that of empirical research, i.e. different modes of experimentation and observation like collecting data by means of case studies, questionnaires, surveys, etc. These are the primary sources that give us first-hand information that can be then analyzed. This data collected can then be arranged in pie charts, bar graphs or other forms to reach a conclusion.
Advantages and disadvantages
The advantages of non-doctrinal research are many but the prime one remains its utility in practical purposes. It helps in gauging the practical effectiveness of laws in various non-legal fields. It is an effective tool to judge the performance of law in society. Legal issues are better analyzed when studied in a comprehensive manner by taking into consideration all the factors that might affect it. Moreover, when the data is quantified, it becomes rationally more appealing and authentic. Also, since it relies on primary sources of information, it is more reliable.
Developing welfare policies for people has become the major function of the state. But it is not possible without any data that reveals the actual circumstances of society. Non-doctrinal research tells us what actually the society needs, where the laws are lacking and what are the responses of people on whom those laws are imposed. All of this information which can be obtained by non-doctrinal research makes policymaking a better and easier task.
Moreover, there is a gap between the law in books and law in action. Law transforms to a certain extent when it comes to implementation. Many variables exert their influence to cause this transformation. Knowledge of these factors that can be obtained by non-doctrinal research can help us in understanding this gap and in working towards eliminating it.
However, it also has its fair share of pitfalls. Non-doctrinal research is very time-consuming. It requires a lot of time and resources. Availability of funds poses another challenge. The collection of data can be a daunting task. And more than that, collecting the right pool of information from society can be full of errors. People have different understanding and amounts of information. They have their own biases. That means the information collected, like from questionnaires and surveys can be skewed and misleading. Also, collecting primary data about some sensitive issues can be a dangerous task for the researcher. The research may also be blurred by the researcher’s personal prejudices and biases.
Comparison between doctrinal and non-doctrinal research
- Doctrinal research is theoretical research, while on the other hand, non-doctrinal research is more practical.
- Doctrinal research has its roots in the analytical or positivist school of thought. But non-doctrinal research comes from the realist school of thought.
- Doctrinal research is based on secondary sources of information, like articles, commentaries, textbooks, etc. But non-doctrinal research is based on primary sources like surveys and case studies.
- Non-doctrinal research includes fieldwork but doctrinal research is library-based arm-chair research that does not involve going to the field.
- Doctrinal research is more concerned with the question “What is law” and studying law exclusively. But non-doctrinal research studies law in connection with society and various non-legal aspects that affect the law. It is socio-legal research.
- The scope of doctrinal research is narrower concerning the law in isolation. But non-doctrinal research has a wider scope and studies law in comprehensive terms.
Conclusion
Both forms of legal research have their own share of advantages and disadvantages. This means that none of them is infallible or complete in itself. One is rooted in theory while the other in practicality and as theory cannot be sacrificed for practicality alone and vice versa, both of them have their separate roles in the field of legal research.
Doctrinal research has helped in developing a basic awareness of legal issues among the people. It has immensely helped judges and attorneys in legal suits to develop valid arguments and reach an effective judgment. The development of tort law is a prime example. Doctrinal research by focusing on “law as it is” has helped in percolating a greater awareness about legal issues among the masses. It has also helped in pointing out the loopholes in existing laws and statutes. As another side of the same coin, non-doctrinal research focuses on law in action in its playing field i.e. the society. It could be of great help for analyzing the effects of laws on people and how to bring out legal reforms. It helps the law to catch up with this ever-changing society. Judicial activism is a great product of non-doctrinal research.
Therefore, both these forms are complementary to each other. Doctrinal research forms the foundation, on which the structure of non-doctrinal research can be constructed. They need to and must support each other. They can be used alternatively or in a hybrid form for effective and meaningful legal research.
References
- Bouchrika, Imed. How to Write Research Methodology: Overview, Tips, and Techniques. May 2, 2021. https://www.guide2research.com/research/how-to-write-research-methodology (accessed July 4, 2021).
- How to do legal research in 3 steps. https://legal.thomsonreuters.com/en/insights/articles/basics-of-legal-research-steps-to-follow (accessed July 4, 2021).
- Jain, S.N. “Doctrinal and Non-Doctrinal Research .” Journal of the Indian Law Institute, 1982: 341-361.
- Salim Ibrahim Ali, Dr. Zuryati Muhammad Yusoff, Dr. Zainil Amin Ayub. “Legal Research of Doctrinal and Non-Doctrinal.” International Journal of Trend in Research and Development, 2017: 493-495.
- Tiwary, Shriram. “Doctrinal and Non-Doctrinal.” Academia. 2020. https://www.academia.edu/40656281/Doctrinal_and_Non_Doctrinal_Methods_of_Legal_Research (accessed July 4, 2021).
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