rw (march 3017 lecture 2)

LEGAL RESEARCH

LEGAL RESEARCHINTRODUCTION TO

LEGAL SCHOLARSHIP

Legal Research, or law research, usually refers to any systematic studyof legal rules, principles, concepts, theories, doctrines, decided cases,legal institutions, legal problems, issues or questions or a combinationof some or all of them.

Legal Research Methodology is a process of doing research using Legalresources, legal terms, concepts, principles and legal techniques whenwriting a research report.

Compilation of all the relevant information about an issue by undergoing all the researching process which is from planning to identifying relevant facts of an issue.

Is a complex skill. As a researcher, one will need to be familiar with at least those areas of the law in which one claims to have expertise.

To be an effective researcher one would need to:

1. Have an understanding of the relationship between the judiciary and

other organs of government, the various influences (political,

economic and social) on judicial decision making, the impact of the

adversarial system of trial on law and law making and the

relationship between domestic and international law.

2. Be able to find the law in the areas that he / she has expertise and to

update his / her knowledge constantly.

3. Be able to plan his / her research in order to make best use of

available time and resources.

4. Need to be thorough and creative because real-life problems are

rarely textbook problems.

Law research is often classified into two broad categories:

When research is concerned with some legal problem, issue or

question, it is referred to theoretical, doctrinal or pure legal

research.

When legal research also involves a study of some aspect of

societal problem, issue or question, it is sometimes termed as

socio-legal research.

Doctrinal research (also referred to as theoretical, pure legal,

academic, traditional, conventional, armchair research) is

essentially a library-based study, which means that the

materials needed by a researcher may be available in libraries,

archieves and other databases.

Socio-legal research (also termed as non-doctrinal, field study,

empirical research) refers to the study of some aspect of ‘law in

operation’, ‘law in action’, which means a study of how law operates

in a social context or how law deals (or should deal) with a social

problem, issue or question.

There is a growing realisation that research studies in the field of law

should not be confined to pure legal matters (such as legal

principles, rules or legal institutions) and that research should, where it

is relevant and useful, cover some kind of social study. Some of its

basic features are stated below:

SOCIO-LEGAL RESEARCH

a) Social research is a systematic study into social, political or other fact-conditions

to discover unknown or partly known factors working behind a particular

phenomenon, to understand why something happens and to draw inferences

and general conclusions.

b) It is an attempt to ascertain why and how human beings behave in a certain way

in certain factual situations.

c) It is to identify the cause and effect of a certain problem.

d) Social research may often be carried out with a view to ascertaining peoples’

idea, views, attitudes or values on a certain legal or social problems, issue or

question. Many surveys and opinion polls are carried out with the object in view.

e) Social research is essentially a field study, where the methods used in social

research are observation, content analysis, case studies, or survey research

using interviews and questionnaires.

Legal studies may differ in their purpose, method and nature.

Descriptive and Exploratory Study

Descriptive approach seeks to find out what happened. It involves the

ascertainment of the state of affairs in respect of any problem, issue or

question.

Explanatory Studies

Most studies in the field of law go beyond description and seek to explain a

particular phenomenon. An explanatory approach seeks to tell why or how

something happened (unlike a descriptive study which tells only what

happened).

Analytical and Critical Studies

Analytical and critical approach is quiet different, in its method of treatment, from a descriptive or explanatory approach. Analytical approach involves a careful examination and evaluation of something in order to understand or explain it or draw inferences and conclusion from it.

Historical Studies

Historical approach involves an objective study of the past facts, events orinstitutions. The purpose of such approach may be to find out how and why certainrules, principles or institutions have come to take their present from. Where thepurpose of a research study, or a part of it, is to find out the origin of trace thedevelopment of anything that has some relationship to law, the approach is termedas historical – a study of the past.

Comparative Study

A research may involve, either wholly or partly, the study of some legal problem,

issue or question in a comparative perspective. A researcher may find it

worthwhile to examine similarities and dissimilarities between two situations

existing within the same legal system.

Similarly, a research may involve a study of some problem, issue or question in

one legal system and a comparison with the position as it may exist in some

other legal system.

It may be emphasised here that in academic institutions, especially where the

aim of a study is to prepare a dissertation or thesis, the research in most cases

involves the use of more than one approach.

What is it?

Literature: written works with high value particularly done by specialist/person who has skills.

Review: to consider, to give opinion or to study.

Normally form part of a research thesis.

a process whereby a researcher conducts a study on previous researches/contributions/works which is related to the present research undertaken by the researcher

A literature review is the presentation, classification and evaluation of what others have written on a particular subject

How is it done effectively?

It is organized based on:

Research objective

Research question and/or the problem/issue

*LR can be done before developing research question &

*It can also be done after identifying the research question

NOT the aim OF LR

List as many articles and names as possible

Try to refer to every piece of literature in the areas

Necessary to refer when:

• It agrees with your thesis or research statement

• Partly agrees or disagrees with your thesis or research

statement

1. Must have a thorough understanding of works reviewed.

2. Organised common findings or argument together

3. Seek information-show that you can scan the literature efficiently using manual or computerized methods to identify a set of potential potentially useful articles and books.

4. Appraise information critically- identify controversy when it appears in literature. You need to show that you can apply principles of analysis to identify those studies which are un biased and valid

5. Must gain some insight into the field.

6. Organize all the info. into unified picture.

7. Start writing LR-planning & good, clear writing/rewriting.

8. Develop questions for further research

EFFECTIVE LEGAL RESEARCH

PLANNING IMPLEMENTATION PRESENTATION

Important to plan out the research to avoid wasting time in the law library.

The plan can be used to access primary and secondary sources with confidence.

Variety of subskills are needed to do planning: Exploring ideas (background reading – general fact collection and

analysis) Problem identification – Narrowing down issues Establishing objectives Establishing a research plan Fact collection Legal knowledge Legal analysis Fact analysis Further fact collection Identification of avenues of research Generation of key search words

Concerned with the preliminary organization of effective and efficient research.

Importance of pre-planning: the time one will spend accessing primary and secondary sources cannot be overestimated.

Well planned research will save researcher’s time and money

Steps in planning are divided into four:

1.Facts Collection/data

2.Facts Analysis/data

3.Identification of factual and legal issues/research problems

4.Formulating a research plan/research framework

FACTS COLLECTION/Literature review

To collect all relevant facts/data from all possible sources. Legal knowledge will assist in seeking and identifying relevant facts in an issue.

FACTS/data ANALYSIS

Identification of relevant legal principles. Once the facts aregathered, need to analyze their significance. Process ofextracting or selecting the facts/data that are considered to be ofrelevance by going through the facts one by one, analyze eachfact and then try to bring out the legal principles from those facts.

IDENTIFICATION OF FACTUAL & LEGAL ISSUES

Distinguished the relevant issues from the irrelevant issues.

This will lead to organize them and to relate the data to the

relevant legal principles and vice versa. A chronological

organization of information helps organize record of events

at the initial stage of the research.

FORMULATING A RESEARCH PLAN/ research framework

The main thing to be done is the combination or

compilation of all the data and legal issues.

To generate a list of key words, that is, alternative words or phrases which might be used in indexes and bibliographies.

The importance of developing an accurate and creative list of key words and phrases to use in all index searches cannot be overestimated.

The level of generality or specificity of the search terms will depend on the index or bibliography which are planning to use. Eg: If an index of texts the search terms will be broadly formulated and should try to think of as many synonyms as possible. If planning to use LEXIS or another legal index, then the search terms are likely to be much more specific.

The better planning of research, the more likely it is that the

research implementation and outcomes will be efficient and

effective.

There is no one set routine of planning for research. Should

ultimately develop own personal method of research planning.

The method itself is less important than the end result - an

effective plan which saves time later in the research task.

If your research is inadequately planned, your research product is

likely to be incomplete, if not inaccurate. Adequate planning will

minimize patching up work in the process of reporting.

The further step after planning a research

The collected data and information will be worked out to make a good presentation the research. The subskills needed are :

Identification of problems to be resolve

Identification of relevant source materials

Location of source materials

Effective use of source materials

Analysis of research findings

Application of findings to problems

Identification of further problems

Books

Law Journals

Law Reports

Legislation

Legal Encyclopaedias

Law Dictionaries

Databases

Online Resources

Write a draft of the research findings in response to the

research problems to be addressed.

Presentation of research findings depends on the structure

and form chosen by you eg. Thesis report, journal article, a

review of a research etc.

Objective of the report :These will influence the nature of

the language used and, to an extent, the structure of the

document. Your objective may, for example maybe to

persuade, to inform, to record, to threaten, to sympathize,

to extract information, to demand or any combination of

them.

Should be determined both the general objective(s) of the

research& more specific objectives that you wish to achieve.

Intended audience : the person for whom the report is intended - for example, whether the audience or reader is a lay person or a fellow legal researcher - will influence both its language and structure.

Structure : No one systematic technique for presenting research findings.It may take a variety of forms. More often in the form of written report.

Preparing drafts : Making draft of every document is good in making a effective report. Evaluate the report. You will rarely find that you cannot improve upon it.

An outline of the research paper is to be discussed by week

6 and confirmed towards a Research Paper of between

3000 – 3500 words essay by week 10.

Introduction/Background

Statement of Problem

Research Objective

Research Question

Literature Review

Research Methodology

Research Significance

Scope & Limitation

Reference

Appreciate the fact that you may require approvals before collecting and analyzing data.

Recognize the processes in place when attempting to get approval.

Be ethical and respectful throughout the research journey.

Do not compel people to be part of your research.

Legal research is a process - has a logical sequence with definite goals.

Ultimate goal of legal research is to find primary data applies to the research problems. Primary authority is the law that governs the problems/issues. One step in finding relevant primary authority is determining which type or types of primary authority control the issue or laws.