Different cases must be approached in different ways and this is why it is important to know which type of legal research methodology is suitable for your case and helpful for your client. For ExampleDoctrine of Indoor Management (According to this doctrine, persons dealing with the company need not inquire whether internal proceedings relating to the contract are followed correctly, once they are satisfied that the transaction is in accordance with the memorandum and articles of association. As detailed previously, the law reform commissions have always performed this role well.Further research is necessary to determine if there are regularly gaps between existing empirical data, the consultation responses, and the recommendations. In short, it is library-based research that seeks to find the one right answer to certain legal issues or questions. [3]Singhal, Ashish Kumar & Malik, Ikramuddin (2012). This is where the methodology comes into play. It employs methods and information available from other disciplines to make a comprehensive approach towards law. There are discrete comparisons of legal provisions in two or three jurisdictions, comparisons of the legislation between numbers of jurisdictions in order to provide context, and at the very least the use of comparative data and information on the law in other jurisdictions using secondary literature. Law students at the graduate and post-graduate levels usually venture into the world of legal research with the help of doctrinal methodology. IF YES!!! It has also helped in pointing out the loopholes in existing laws and statutes. Surveys, for example, were outlined and explained using appropriate tables. The difference lies in the degree of political interference in public policy outcomes. 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. A course of action must be selected. There are approximately 100 Australian journal titles on this database including most of the university law reviews. Accordingly, they continue, the law somehow represents a system so that through the production of general and defeasible theories, legal doctrine aims to present the law as a coherent net of principles, rules, meta-rules and exceptions, at different levels of abstraction, and decisions in individual cases are supposed to exceed arbitrariness because they have to fit into the system so that the system remains coherent.11x Ibid. ), The word doctrine refers to a set of beliefs. As Barnett has commented, there is a real need in law reform to uncover the facts upon which law reform proposals are based, so that they need to see the entire picture and identify the real problem(s) before launching into a search for policy solutions.63x Barnett, above n. 46, at 181. 50 Australian Law Reform Commission, above n. 43, at 5. People have different understanding and amounts of information. Availability and choice of right and reliable sources is the bottleneck in doctrinal research. Pure research is another name for this type of study. And more than that, collecting the right pool of information from society can be full of errors. Also, non-legal factors affect the implementation of the law. A researchers analysis of a case often begins in the initial research stage when he/she identifies the relevant facts and determines the legal issues that must be researched. But non-doctrinal research comes from the realist school of thought. Globalisation and technology mean that the wider legal sphere is more accessible and pertinent for the legal scholar. Evidence exists of law reform commissions in Scotland in 1425 and various ad hoc committees set up to reform and rationalise the law over the centuries in England,36x W. Hurlburt, Law Reform Commissions in the United Kingdom, Australia and Canada (1986), at Chapter 2 Law Reform Commissions in the United Kingdom 15-99 generally. This demonstrates that law is still essentially a scholarly endeavour.There are differences between the research process and methods undertaken in a PhD program compared to a great deal of legal academic scholarship. There is certainly a cross-over with the methods used by the institutional law reform commissions because the process includes public consultation, discussion papers, public submissions, surveys, public meetings, and written reports. More practical policy and reform aspects combining the law and social science studies will be directed to subject-specific current issues in the law titles. The next step could be to analyze the purpose behind bringing that particular law. The non-doctrinal approach allows the researcher to conduct research that analyses the law from the perspective of other scientific disciplines, and to employ those disciplines in drafting the law. L. Barnett, The Process of Law Reform: Conditions for Success, 39. The Australian Law Reform, Law Reform Process under a Creative Commons License 3.0: . Two prominent methodologies that are employed in legal research are doctrinal and non-doctrinal. They have their own biases. See, for example, E. Jones, Some Current Trends in Legal Research, 15(2) Journal of Legal Education 121 (1962-1963). ), Starting Research Supervision and Training (1992), at 54. Law transforms to a certain extent when it comes to implementation. The reports have narrow terms of reference, and it may be the case that only a very few academic articles are ever directly on point. To begin with the advantages, doctrinal research forms the base of legal research in the academic field of law. 40 Commonwealth of Australia, The Senate, Legal and Constitutional Affairs References Committee: Inquiry into the Australian Law Reform Commission (2011), at 9. There are many Types of Legal Research like Descriptive Legal Research, Quantitative Research, Qualitative Legal Research, Analytical Legal Research, Applied Legal Research, Pure Legal Research, Conceptual Legal Research, Empirical Legal Research, Comparative Legal Research, Doctrinal Legal Research, Non-doctrinal Legal Research, etc. The current expectation in the literature is that there will be some statement of the legal jurisdictional status quo or an acknowledgement of obvious discrepancies in practice elsewhere. Current studies suggest that this is not occurring to the same extent within the law reform commissions.1x K. Tranter, Citation Patterns within the Australian Law Reform Commission Final Reports 1992-2012, 38(1) University of New South Wales Law Review 318 (2015). 3 T. Kuhn, The Structure of Scientific Revolutions (1996). These steps include examining legal issues to decide if more study is needed. But very rarely is new data compiled from within the commissions. and are helping future lawyers and advocates Doctrinal research is described as a research method that is often considered as ". Any recent studies of the use of legal research methodologies focus on the postgraduate research arena. Common law has been developed by the efforts of jurists and the Courts decisions. A few years later, in the Harvard Law School Annual Report, Langdell again noted:The work done in the Library is what the scientific men call original investigation. Law Librarians, Law Libraries and Legal Research in the Post-Internet Era, 106(4). D. Weisbrot, The Future for Institutional Law Reform, in B. Opeskin and D. Weisbrot (eds.). What is current practice and how valid are the outcomes or any recommendations for change based on the studies? Doctrine and doctor derive from the same Latin word, docere, which means to teach: doctor means teacher, and doctrina means teaching, learning.. For this reason it is difficult to validly determine the total extent of methodologies being implemented by legal scholars simply by examining law journal articles.Despite the existence of these limitations on assessing legal research activity, an examination was conducted of a set of journal articles on the topic of reform of the criminal law which were published in 2013. A good lawyer will be aware of the advantages and disadvantages of any particular methodology and will be able to get better. Doctrinal or library-based research is the most common methodology employed by those undertaking research in law. A discipline paradigm encompasses any underlying philosophies, which again, in the common law world, has been predominantly liberalism, with its ideas of rationalism, the importance of personal property and individual self-determination. The terms of reference for law reform enquiries are normally set by the Attorney General in consultation with the Commission. Even the choice of topic for examination depends on the researchers world view. Often, the combination of different methods of Legal Research, i.e., a mixed-method using ideological, social, and legal, can work together to achieve a better understanding of the law. Developing welfare policies for people has become the major function of the state. Who are experienced in the legal field and have had helpedand are helping future lawyers and advocates Doctrinal research is described as a research method that is often considered as "normal judicial research. NEED HELP IN UNDERSTANDING AND PLANNING YOUR LEGAL CAREER, IF YES!!! Public consultation constitutes a non-doctrinal method and as such is interdisciplinary in its approach. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Congratulations! Reform-oriented research recommends change. The essential features of doctrinal scholarship involve a critical conceptual analysis of all relevant legislation and case law to reveal a statement of the law relevant to the matter under investigation.2x T. Hutchinson, Val Bunny Watson? The reform-oriented research taking place in the commissions was primarily doctrinal, but depending on resources, had a consultative aspect and the potential to be interdisciplinary in its methods.20x D. Weisbrot, The Future for Institutional Law Reform, in B. Opeskin and D. Weisbrot (eds. It also helps Clientsfind a lawyer. This article considers three examples of research and writings by lawyers which are directed to law reform. One of the main purposes of conducting doctrinal research is solving the legal problems of bringing laws. ARE YOU FINDING IT TOUGH TO GET A GOOD JOB OR INTERNSHIP OPPORTUNITY? Doctrinal research asks, what is the law in a particular case. Six of the articles disclosed their funding sources as being either from external publicly funded grants or university internal grants, and five of these were jointly authored. While statistical studies on methodologies being used in legal research are rare, the topic of how lawyers research is not a new area of legal academic concern. As it is well known, this is purely theoretical research that consists of either simple research aimed at finding a specific statement of the law, or it is legal analysis with more complex logic and depth. 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. 39 Australian Law Reform Commission Act 1996 (Cth), and see the Public Governance, Performance and Accountability Act 2013 (Cth). It can be a problem, policy, or a reform of the existing law. Sometimes, a very comprehensive law is brought but sometimes the environment is such that its effectiveness is shielded by those circumstances. Jain, S.N. [2] Doctrinal research is a study of constitutional principles, i.e., "It inquires about what the rule is on a specific subject." Five of the articles simply critiqued the existing laws.Some of the limitations of this pilot study must be acknowledged openly. Tranter, above n. 1; Barnett, above n. 46. Legal Research of Doctrinal and Non-Doctrinal., Tiwary, Shriram. The question, therefore, must be whether the evidence, gathered from the consultations and submissions sent to the law commissions in their enquiries, is being infused into the recommendations? It is more concerned with social values. This forms part of the context of the doctrinal discussion.Many of the articles (twenty-three) include recommendations for reforming the law informed by the evidence presented. At what point in the analysis is this data being infused into the discussion and how is this evidence being synthesised with the law in coming to a conclusion or recommendation for reform? Here's your opportunity to achieve your goal and clear all your queries with the help of professionals. Law, considered as a science, consists of certain principles or doctrines. Law should be suited to the needs of the real world. Common law lawyers use this term to refer to an established method of resolving similar factual or legal issues. 7 Council of Australian Law Deans, Statement on the Nature of Legal Research (2005), at 3. These are discussed at more length later in this article. Doctrinal research has the root word doctrine which means a principle or a basic governing tenet. different modes of experimentation and observation like collecting data by means of case studies, questionnaires, surveys, etc. Doctrinal research provides the instruments required in the legal judgment for attorneys, judges, and others. R. Macdonald, Recommissioning Law Reform, 35, W.H. It is widely recognised that comparative research approaches are becoming the norm within the current doctrinal method, and this small snapshot of articles reinforces this perspective. This issue requires further research.To what extent do the law reform commissions have recourse to academic material on the issues they are studying? A basic search string resulted in a retrieved list displaying 60 items. The search was conducted on 16 February 2015. Theory is part of the contextual framing. 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. In 2006, Martha Minow, Dean of Harvard Law School, identifies doctrinal restatement as one of the main contributions legal scholars make within their research.8x M. Minow, Archetypal Legal Scholarship A Field Guide, 63(1) Journal of Legal Education 65-69, at 65 (2013). The established paradigm within research in the discipline of law has involved the individual scholars legal voice.So doctrinal research was the predominant category identified in all the discipline assessments for law that took place in the 1980s.5x H. Arthurs, Law and Learning: Report to the Social Sciences and the Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (1983), at 66; D. Pearce, E. Campbell & D. Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987). The doctrinal methodology design was tacit; not so any non-doctrinal methods. The reports categorised other methodologies such as law reform research, legal theory research, and fundamental research separately.18x Pearce, Campbell & Harding, above n. 5, 2, at 310 [9.12]. As stated earlier, it is theoretical research that does not involve any kind of experimentation or fieldwork. The Library is to us what a laboratory is to the chemist or the physicist, and what a museum is to the naturalist.15x C.C. But non-doctrinal research has a wider scope and studies law in comprehensive terms. In the Preface to Contracts, he commented:13x B. Kimball, The Inception of Modern Professional Education: C.C. M. Brown, G. Lansdell, B. Saunders & A. Eriksson, Im Sorry But Youre Just Not That Special Reflecting on the Special Circumstances Provisions of the Infringement Act 2006 (Vic), 24(3), There are Law Reform Commissions in most of the Australian jurisdictions. For this purpose, the help of other behavioural sciences can be taken. Canada too has multiple reform commissions or institutes, for example, The Law Reform Commission of Nova Scotia and the non-statutory Alberta Law Reform Institute. Therefore, they cannot be studied in isolation and must be developed as per societys requirements. To provide prosecutors, judges, and those with the appropriate resources to take action on a vast spectrum of topics, often with little time. 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. The most basic step in legal research is to find a noteworthy case governing the issues in question. The process does not seek to study the influence of the Statute or its use. 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. Pearce, Campbell & Harding, above n. 5, 3, app. This discussion concentrates on the future of legal scholarship and the evolving taxonomy for incorporation of insights from other disciplines, particularly the social sciences, into reform-oriented legal research.Even when a non-legal response might be just as appropriate to resolve a broader social problem, doctrinal researchers have tended to continue to work within the parameters of the discipline in order to make recommendations for reform. It does not take into consideration the human aspects of law and how it affects people in society. There are apparent differences in the level of complexity of the doctrinal legal study. Studies of reform in other areas of law such as tort law or corporate law or equity might well be more legalistic in approach. 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. Law Librarians, Law Libraries and Legal Research in the Post-Internet Era, 106(4) Law Library Journal 579, at 584 (2014). Doctrinal research forms the foundation, on which the structure of non-doctrinal research can be constructed. Hurlburt challenged all of these ideas in a spirited reply in the same issue of the journal.53x W.H. Both forms of legal research have their own share of advantages and disadvantages. However, twenty-three of the articles include a comparative review of the existing law particularly for the Australian state jurisdictions as well as pertinent examples from international jurisdictions. Broadly speaking, different topics will be packaged for the various audiences to best disseminate the research amongst the assorted discipline audiences. This stage often involves a great deal of background reading on a subject using sources such as dictionaries, encyclopedias, major textbooks, treatises, and journals that are accompanied by footnotes. In short, doctrinal research is not therefore researching about law at all. The research basically means searching for something again and again until we reach an unequivocal conclusion. The literature reviews cover secondary legal literature. Most often, the starting point in any research is doctrinal, i.e. *The Author is a 2nd year B.A.LLB (Hons) student at Jagran Lakecity University, Bhopal. The advantages of non-doctrinal research are many but the prime one remains its utility in practical purposes. The doctrine of precedents also developed around the same time. Langdell, 1826-1906 (2009), at 349, app., 2. 10 R. Van Gestel and H-.W. Historically, the doctrinal process has been described within a problem framework with a number of linear steps including assembling the facts, identifying the legal issues, analysing the issues with a view to searching for the law, undertaking background reading and then locating primary material, synthesising all the issues in context, and coming to a tentative conclusion.17x T. Hutchinson, Researching and Writing in Law (2010) 41, at 42. view the economist or linguist or criminologist. 29 D. Manderson and R. Mohr, From Oxymoron to Intersection: An Epidemiology of Legal Research, 6 Law Text Culture 159, at 164 (2003); and see D. Manderson, Law: The Search for Community, in S. Marginson (ed. It is socio-legal research. PhD requirements influence the scope and the depth of analysis of any study as well as the choice of research methodology. Possibly because of this high level of scrutiny, the Commissions Annual Reports contain very detailed information on performance and outcomes.44x Australian Law Reform Commission, Report 125: Annual Report 2013-13 (2014), at 26. See, for example, E. Jones, Some Current Trends in Legal Research, 15(2) Journal of Legal Education 121 (1962-1963). Here's your opportunity to achieve your goal and clear all your queries with the help of professionals. The policy inquiries are funded and driven by politicians, whereas law reform terms of reference emanate from government, and the research is conducted independently of departmental interference.Martha Minow identifies Comparative and Historical Inquiries as another typology or intellectual contribution of legal scholarship which Describe an earlier era or contrasting legal regime; Contextualize the selected era or regime utilizing social sciences such as anthropology or history; and Illuminate differences, choices, or continuities when compared with contemporary domestic practice.26x Minow, above n. 8, at 68. It has been a close companion of law academicians, students, judges, advocates and jurists. All of this information which can be obtained by non-doctrinal research makes policymaking a better and easier task. Hurlburt, The Origins and Nature of Law Reform Commissions in the Canadian Provinces: A Reply to Recommissioning Law Reform by Professor R.A. Macdonald, 35 Alberta Law Review 880 (1996-1997). Unless scholars are very familiar with doctrinal method limits, study findings can be "too academic, too analytical, unquestioning, conservative, irrelevant and without proper regard to the cultural, economic and political relevance of a legal procedure.". Macdonald advocated that law reform should be focusing on alternative reform processes (and outcomes) rather than simply presenting a report together with redrafted legislation as a standard response, and that there should be a different choice of projects moving away from substantive law topics to broader areas of social justice and the relation of law and society.52x Ibid., at 875. Pearce, Campbell & Harding, above n. 5, 3, app. It is generally the process of checking for a legal precedent that can be cited in a brief or at trial. Doctrinal research is based on secondary sources of information, like articles, commentaries, textbooks, etc. 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. There have been trends in the popularity of law reform commissions resulting in the periodic closure and rebirth of agencies in common law jurisdictions depending on government finances and reform agendas.42x N. Rees, The Birth and Rebirth of Law Reform Agencies, Australasian Law Reform Agencies Conference 2008 Vanuatu 10-12 September (2008). Langdell, A Selection of Cases on the Law of Contracts (1871) from Kimball, above n. 13 (emphasis added). 47 L. Barnett, The Process of Law Reform: Conditions for Success, 39 Federal Law Review 161 (2011). Interdisciplinary legal articles, even those being written by non-lawyers from an outsider view, frequently acknowledge the black letter or doctrinal core of law as the starting point, whatever methodology is being used to pursue the authors agenda.25x Bartie, above n. 9. In the United Kingdom, the Law Commission and the Scottish Law Commission are statutory commissions established by the Law Commissions Act 1965 (UK); The United States has multiple committees or commissions, for example, The California Law Revision Commission and the Michigan Law Revision Committee. The main challenge for doctrinal interpretation is the absence of helpful information. ), Starting Research Supervision and Training (1992), at 54. Non Doctrinal research can be qualitative or quantitative or could be part of a large-scale project. More recently Angela Melvilles comparison between New Zealand and Canadian law reform commissions pointed out the difference in approaches.57x A. Melville, Conducting Law Reform Research: A Comparative Perspective, 28(2) Zeitschrift fr Rechtssoziologie 153 (2007), at 153. Legal scholars may not often utilise non-doctrinal methods themselves, but they do include the results of the use of these methods in their research. The research may also be blurred by the researchers personal prejudices and biases. Society is dynamic and so should be the law. 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. For example, for a provision of the constitution, Constituent Assembly Debates could give great insight. the society. These characteristics are particularly ubiquitous in the British common law legal tradition. However, the recommendations in a law reform report are not the final word. According to this study, 16 of the 60 theses examined include a chapter to describe the use of non-doctrinal methodologies, 21 theses discuss methodologies as part of another chapter, and one deals with the methodology in an appendix. Greycar and Morgan provide examples of the lack of empirical methods and data in the formation of law reform recommendations in favour of so-called common sense anecdotal information.56x Ibid. The legal review aims to understand and assess the effects of policy measures scientifically. It helps in gauging the practical effectiveness of laws in various non-legal fields. Also, since it relies on primary sources of information, it is more reliable. While the reports are referencing legal reforms implemented (and sometimes evaluated favourably) in other jurisdictions, recent examination of the reports produced by the commission has demonstrated a paucity of reference to published academic commentary on the issues they are examining, and also little empirical data to back up the recommendations.61x Tranter, above n. 1, at 349. Copyright 2016, All Rights Reserved. Where a comparison was included, the study considered whether this was contextual or a full comparison and whether there was also reference to public international law. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). The doctrinal legal analysis will be published in a university law review or topic specific law journal targeting academic and practising subject specialists. Legal theory is a crucial tool to provide a critical perspective on the law. They have confined their research to a critical analysis and synthesis of the law. The law reform commissions are touted as one of the main conduits for law reform.46x Commonwealth of Australia, above n. 40, at 9 [2.18]. Before examining the research within the commissions, it is necessary to understand a little more about how the commissions function. Is this fundamentally changing the doctrinal method? ), Investing in Social Capital (2002), at 152 on breakdown of empirical and doctrinal PhDs in Australia. They can be used alternatively or in a hybrid form for effective and meaningful legal research. It is difficult to reduce to an algorithm. It's all about examining legal theory and how it's been formed and implemented. 49 Justice Kirby has concluded that the most original value added of the ALRC and its chief contribution to the law reform technique in the years after its establishment was its emphasis on public consultation. It helps the law to catch up with this ever-changing society. The method is assumed knowledge within the discipline part of the grab-bag of skills associated with thinking like a lawyer. 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. Now research may be sponsored by the government to check whether circumstances are conducive to bringing such a law. For this reason, it is sometimes described as research in the field of law. The extensive footnoting used as the preferred citation style for this group of articles provides an updated record of the secondary literature on the topic. Arguably comparative law, extending far beyond a simple backward glance to the genesis of a legal proposition, is now an intrinsic part of legal scholarship. Tranter has identified two possible approaches to law reform one being the research institute approach where recommendations are generated by experts analysing relevant data and academic literature and the other evidencing a community engagement approach where recommendations are located as having emerged from a process of community consultation.48x Tranter, above n. 1; Barnett, above n. 46. In this respect Langdell was suggesting that the law ought to be studied from its own concrete phenomena, from law cases, in the same way that the laws of the physical sciences are derived from physical phenomena and experiments.16x Kimball, above n. 13, at 351, app., 2, n. 10; J. Redlich, The Common Law and the Case Method in American University Law Schools (1914), at 15. As most legal researchers know, this is far more difficult than it sounds. Interested to know more? This entails segmenting the work. Micklitz, Revitalizing Doctrinal Legal Research in Europe: What About Methodology?, European University Institute Working Papers Law (2011)/05, at 26. J. Jones, Undergraduate Students and Research, in O. Zuber-Skerritt (ed.). In the United Kingdom, the Law Commission and the Scottish Law Commission are statutory commissions established by the Law Commissions Act 1965 (UK); The United States has multiple committees or commissions, for example, The California Law Revision Commission and the Michigan Law Revision Committee. Hurlburt, The Origins and Nature of Law Reform Commissions in the Canadian Provinces: A Reply to Recommissioning Law Reform by Professor R.A. Macdonald, 35, R. Greycar and J. Morgan, Law Reform: Whats in It for Women?, 23, A. Melville, Conducting Law Reform Research: A Comparative Perspective, 28(2).
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