What do you mean by Legal Research?
Legal research is the process of identifying and finding information necessary to support legal decision making. It is generally the process of checking for a legal precedent that can be cited in a brief or at trial. Virtually every lawsuit, appeal, criminal case, and the legal process usually requires some amount of legal research. Legal research skills are of great importance for lawyers to solve any legal case, regardless of area or type of practice. The most basic step in legal research is to find a noteworthy case governing the issues in question. As most legal researchers know, this is far more difficult than it sounds.
A researcher's 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. As this analysis continues, it is further refined as they decide where, how, and what to search. When they find relevant legal materials, they must understand them and how they apply to the facts of their case in hand. This research provides a crucial analytical foundation that will aid them in their decisions for the remainder of the case.
Whether you are a Lawyer, a paralegal or a law student, it is essential that Legal research is done in an effective manner. This is where the methodology comes into play. 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.
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.
This article talks in-depth about two types of Legal Research:
- Doctrinal Legal Research
- Non-Doctrinal Legal Research
What is the meaning of the word “Doctrine” under Doctrinal Research??
Doctrine Definition: A rule or principle of the law established through the repeated application of legal precedents.
Common law lawyers use this term to refer to an established method of resolving similar factual or legal issues. For Example Doctrine 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.)
The word doctrine refers to a set of beliefs. The word comes from the Latin doctor for “teacher,” so think of a doctrine is the teachings of a school, religion, or political group. Doctrine and doctor derive from the same Latin word, docere, which means “to teach”: doctor means “teacher,” and doctrina means “teaching, learning.”
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case.
What is the meaning of the word “Non-Doctrine” under Non-Doctrinal Research?
The word Non-Doctrine under Non-Doctrinal Research deals with the Socio-legal aspect of the research. Here, fieldwork is the most important part of the research. Thus scope is wider. It is more concerned with social values. It can be a problem, policy or law reform based. Non Doctrinal research can be qualitative or quantitative or could be part of a large scale project.
What is Doctrinal Legal Research?
The central question of inquiry here is ‘what is the law?' on a particular issue. It is concerned with finding the law, rigorously analysing it and coming up with logical reasoning behind it. Therefore, it immensely contributes to the continuity, consistency, and certainty of law. The basic information can be found in the statutory material i.e. primary sources as well in the secondary sources. However, the research has its own limitations, it is subjective, that is limited to the perception of the researcher, away from the actual working of the law, devoid of factors that lie outside the boundaries of the law, and fails to focus on the actual practice of the courts.
Methodology of Doctrinal Research
Doctrinal or library-based research is the most common methodology employed by those undertaking research in law. Doctrinal research asks, what is the law in a particular case. It is concerned with the analysis of the legal doctrine and how it was developed and applied. 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. In short, it is library-based research that seeks to find the “one right answer” to certain legal issues or questions. Thus, the aim of this type of methodology is to make specific inquiries in order to identify specific pieces of information.
For example, an investigation can be conducted to find specific legislation that monitors occurrences of child abuse in a particular jurisdiction. All inquiries will have specific answers to specific questions that can be easily found and verified, and these are the keys to is doctrinal or library-based research. These steps include analysis of legal issues in order to determine the need for further research. This stage often involves a great deal of background reading on a subject using sources such as dictionaries, encyclopaedias, major textbooks, treatises, and journals that are accompanied by footnotes. These sources provide Definitions of Terms that help the researcher understand and summarize the legal principles involved in the field of law understudy.
Normative Character of Doctrinal Research
The normative character of doctrinal research in particular contexts, is concerned with the discovery and development of legal doctrines and research, for publication in textbooks and journals that take the form of asking the question, “What is the law?”
Legal rules are normative in character because they dictate how we should behave as individuals. They make no attempt to either explain, predict, or even understand human behaviour, just to describe it. In short, doctrinal research is not therefore research about law at all. In asking “What is the law?” it takes the internal cognitive approach oriented to the aim of the study. For this reason, it is sometimes described as research in the field of law.
What is Non-Doctrinal Legal Research?
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. It can be a problem, policy, or a reform of the existing law. A legal non-doctrinal finding can be qualitative or quantitative, and a dogmatic non-doctrinal finding can be part of a large-scale project. 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. For example, in the behavioural sciences, there is a standard form of a consumer contract that contributes to the study of psychological phenomena:
- The tendency of consumers not to read the standard form contract,
- The inability of consumers to evaluate the terms of the contract correctly once they do read. And
- The ability of sellers to deal with consumers. Because it uses non-sectarian legal experimental data, it provides vital insights about the law in context, i.e. how the law works out in the real world. Legal research is experimental and valuable in detecting and explaining practices and procedures in legal and regulatory systems. It is also valuable in settling disputes and impacts the legal phenomena of social institutions and businesses. Similarly, experimental legal research in economics applies legal analysis, statistical inference, and economic modelling, to the core areas of national and international law, such as tort, property, contracts, criminal law, law enforcement, and litigation. Earlier research can be used to analyze the economics of legal negligence theory.
In conclusion, we can say that it is easy to target a specific methodology and identify its strengths and weaknesses. However, it must be noted that doctrinal and non-doctrinal legal research is the ultimate way to find the answers that have been raised in the context of attempts to understand the emerging issues in the framework of the law. There is no hierarchy between types of Legal Research and they are all of equal importance for the development and understanding of the law. A good lawyer will be aware of the advantages and disadvantages of any particular methodology and will be able to get better. 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.