Doctrinal research method
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What is doctrinal research
Meaning of Doctrinal Research: A doctrinal research means a research that has been carried out on a legal proposition or propositions by way of analysing the existing statutory provisions and cases by applying the reasoning power. According to S.N. Jain, doctrinal research involves analysis of case law, arranging, ordering and systematising legal propositions and study of legal institutions through legal reasoning or rational deduction. This type of research is also known as pure theoretical research.
It mainly focuses on the nature of law and legal authority; the theories behind particular substantive areas of law, such as torts or contracts; and the nature of rights, justice and political authority. Thus, it involves: (a) Systematic analysis of statutory provisions and of legal principles involves therein, or derived there from, and (b) Logical and rational ordering of the legal propositions and principles.
The researcher gives emphasis on substantive law rules, doctrines, concepts and judicial pronouncements. He organizes his study around legal propositions and judicial pronouncements on the legal propositions of the Courts, and other conventional legal materials, such as parliamentary debates, revealing the legislative intent, policy and history of the rule or doctrine. Doctrinal or library based research is the most common methodology employed by those undertaking research in law. In a nutshell, library-based research is predicated upon finding the ‘one right answer’ to a particular legal questions or set of questions. This involves a significant amount of background reading in order for the researcher to orient themselves with the area of law being studied. Background reading will often include sources such as dictionaries for definition of terms, encyclopedias for a summary of legal principles accompanied by footnoted sources, major textbooks and treatises on the subject and journals. Although primary sources are adequate by themselves, it may also be useful to have regard to secondary sources, which consists of relevant books and journal articles. Doctrinal research looks at the following issues:-
1. The aim of preferred values;
2. The problems posed by the gap between the policy goal and the present state of achievement; 3. Availability of alternative choice for the implementation of goals; 4. The predictions and consequences that were made.
Merits of Doctrinal Research:
There are several advantages associated with doctrinal or library based research methodology. Firstly, it is the traditional method for conducting legal search and is often taught during early stages of legal training. Secondly, it basically involves analysis of legal principles, concepts or doctrines, their logical ordering and systematizing of legal propositions emerging there from, has some practical utility. Thirdly, it provides quick answers to the problem as the researcher is continuously engaged in the exposition and analysis of legislation and case-law and the integration of statutory provisions and judicial pronouncements into a coherent and workable body of doctrine. Fourthly, for all practical purposes, and for resolving day-to-day client matters, doctrinal research is the expected and required methodology.
Furthermore, because of its focus on established sources, doctrinal research is more manageable and its outcomes are more predictable. Fifthly, a scholar of law indulged in doctrinal legal research, in a systematic way and with convincing reasoning, exhibits inbuilt loopholes and gaps or ambiguities in the substantive law and thereby invites the legislature to plug them through amendments, so that the law can be more purposive and effective.
Non doctrinal research method
Meaning of Non-Doctrinal Research:
In the recent past, doctrinal research has received a severe jolt due to change in the political philosophy of law from the laissez faire to the welfare state envisaging socio-economic transformation through law and legal institutions, the consequential new substantive and functional facets of law, and certain compelling pragmatic considerations arising from this metamorphosis. Non-doctrinal research, also known as socio-legal research is a legal research that employs methods taken from other disciplines to generate empirical data to answer research questions. It can be problem, policy or law reform based. Non-doctrinal approach allows the researcher to perform inter disciplinary research where he analyses law from the perspective of other sciences and employs these sciences in the formulation of the law. It is valuable in revealing and explaining the practices and procedures of legal, regulatory, redress and dispute resolution systems and the impact of legal phenomena on a range of social institutions, on business and on citizens.
The methods like observation, interview, questionnaire, survey and case study are used to discover the human conduct. All inquiries are not suitable to empirical methods. Any inquiry whose objective is to determine what is good and what is evil cannot be empirically tested. Research into the value system and moral questions are also not amenable to empirical methods.
The empirical research is mainly concerned with the legal decision process, i.e., researcher’s attention is on variables that influence the decision and the impact of the decisions on the society. The empirical research may be defined as research into relationship of law with other behaviroural sciences. Here, more importance is given to people, social values and social institutions and not to the legal aspects or doctrines. Objectives of Empirical Research:
In a non-doctrinal legal research, the researcher tries to investigate through empirical data how law and legal institutions affect or mould human attitudes and what impact on society they create. He endeavours to look into ‘social face or dimension’ of law and ‘gap’, if any, between ‘legal idealism’ and ‘social reality.’ Thus, non-doctrinal legal research involves study of social-impact of law or of social-auditing of law. Merits of Non-Doctrinal Research:
Empirical research enhances lawyers ability to understand the implications and effects of the law on society. Legal researchers can use social science methodologies themselves to investigate issues, or they can collaborate with skilled researchers from other disciplines. It highlights the ‘gaps’ between ‘legislative goals’ and ‘social reality’ and thereby ‘depicts’ a ‘true picture’ of ‘law-in-action’. It particularly highlights the ‘gap’ in relation to (a) the practice of law enforcers, regulators and adjudicators and (b) the use or under-use of the law by intended beneficiaries of the law i.e. The regulatory body, existing or created under the law, vested with the power to monitor and enforce the law, may, due to some prejudices or apathy towards the ‘beneficiaries’ or sympathy towards their adversaries, be professionally ‘inactive’ in enforcing the Law. Non-doctrinal legal research, in this context, highlights the ‘reasons’ behind making the law ‘symbolic’, less-effective or ineffective.
It also reveals the extent to which the beneficiaries have been able to ‘use’ the law and the ‘reasons’ or ‘factors’ that have desisted/are desisting them from using it. Through empiricism, non-doctrinal legal research highlights the underlying currents or factors (like unawareness on part of the beneficiaries, unaffordable cost in seeking the legal redress, or the fear of further victimization if the legal redress is pursued, and the like) that have been desisting them from seeking the benefits that the law intended to bestow on them and to seek legal redress against those who prevent them from doing so. It, thus, exposes the ‘bottlenecks’ in operation of law. The non-doctrinal research carries significance in the modern welfare state, which envisages socio-economic transformation through law and thereby perceives law as a means of achieving socio-economic justice and parity. It also helps us in assessing ‘impact of law’ on the social values, outlook, and attitude towards the ‘changes’ contemplated by law under inquiry. Difference between Doctrinal (traditional) and non-doctrinal (empirical) research S.No.
Doctrinal (Traditional ) Research
Empirical (non-doctrinal) Research
- 1.It is concerned with legal prepositions and doctrines.
It is concerned with people, social values and social institutions.
2.The sources of data are legal and appellate court decisions. The sources of data are less and mostly new techniques have to be used.
3. It is not concerned with people, but with documents. More importance is given to the society and people, i.e., it tries to find out the effect of legal decisions upon the society.
4.The scope is narrower since it studies about what the doctrine or the authority says. Scope is wider.
5.More support and encouragement is given for this type of research. Less encouragement is given.
6.No use to give training to collect and use the sources. Training is needed to use new techniques in the research.
7.Field work is not needed and library reference is enough. The field work is more important part of this research.