INTRODUCTION
There is no shortcut to the truth --- no way to gain knowledge of the universe except through
the gateway of scientific method. Karl Pearson.
The purpose of research is an enquiry into the nature of knowledge and deriving new facts out
of it. The enquiry done here is a deep one, formulated and enacted in a systematic and logical
way. It can be said as the manipulation of things, concepts or symbols for the purpose of
generalising to extend, correct or verify knowledge, whether that knowledge aids in
construction of theory or in the practice of an art. 1 Thus in the process of research, the
researcher applies the various techniques of finding out truth which hitherto was either
unknown or hidden in the existing pool of knowledge. The process is very often cumbersome,
which cannot be alienated with or the research becomes futile, as was rightly pointed out by
Karl Pearson. Therefore, it becomes necessary to know the various methodologies and
technicalities of research, so as to make the research process an easy one.
The research may have various objectives depending upon the purpose and type of research
methodology adopted. However, the common objective of all the researches is to find out
truth which is hidden and has not been discovered yet. The research is always focussed on
extracting something new out of the existing knowledge pool. Research, thus, requires a
careful and meticulous application of mind on the research topic, not just a casual
understanding of it. It involves the collection of facts, analysis of the collected facts, and
logical inferences drawn from the analysed facts. A method of inquiry becomes systematic
only when the researcher resorts to a systematic approach to, and follows a scientific method
of inquiry into, the fact under investigation. Research, simply put, is an endeavour to arrive at
certain conclusions through the application of scientific methods.2
The research can be in any field be it sociology, science, arts, law etc. Every field has got its
own intricacies and problems, which the researcher has to get acquainted with, well in
advance, to do a good research and accomplish his objectives. The paper shall seek to
highlight on the legal research and its various kinds, along with the merits of one over the
other.
1 D. Slesinger and M. Stephenson The Encyclopaedia of Social Sciences, Vol. IX, MacMillan, 1930.
2 Prof (Dr) Khushal Vibhute & Filipos Aynalem Legal Research Methods 14(2009)
LEGAL RESEARCH
Legal research implies a deep inquiry into the law and its existing state, and then finding out
new facts from it, which hitherto was unknown. The term legal research take into its ambit
a systematic finding or ascertaining law on the identified topic or in the given area as well
as an inquiry into law with a view to making advancement in the science of law.3 The
advancement of science of law is a broad concept and includes various new facts about law,
its effects, reasons of its adoption, ways of improving it, any amendment if needed and the
likes. The task of fact finding, though, seems easy is a very cumbersome process, whereby
the researcher has to look into various statuary provisions, rules, the amendments thereto,
judicial pronouncements, various law journals, articles etc.
Thus, legal research can be said as the process of identifying and retrieving information
necessary to support legal decision-making. It includes an analysis of the facts of a problem
and concludes with the application and communication of the results of the investigation.
NATURE AND SCOPE OF LEGAL RESEARCH
Law has become a ubiquitous agent of social progress. In current era, hardly any country can
be seen which plays as a laissez faire state, having the mere role of enforcement of law and
order. The states have turned to become social welfare state, which has to endeavour towards
a just and social order along with providing socio-economic justice. Law, therefore, becomes
a key agent in enforcing these policies, which cannot be dispensed with, in any situation.
A law has to be legislated, therefore, on the basis of public opinion, because in a democratic
set up, people are considered as the sovereign. Law has to be studied in its sociological aspect
too along with the principles underlying it. The law has to be preceded by a serious study of
the dynamics of law and social changes. In the absence of such a study, law is bound to be
ineffective and an utter failure in its mission. It would reduce merely to a futile legislation.
The enquiry thus requires being a wider one, questioning the reasons of legislation, forces
behind it, objectives of the law, oppositions of law, the effects of it on various strata of
society, its success chances, reasons of its failure, the ways to improve its effects,
amendments etc.
3 Ibid at 22
The administrative mechanism also plays a significant role in a democratic set up. A
continuous careful inquiry into the need for the delegated legislation and the legislative policy
reflected therein; structural and operational ambits of the body created thereunder; inbuiltmechanism for ensuring smooth execution of the policy; abuse of discretionary powers;
working of different administrative bodies, becomes imperative.
The judicial process also plays a major role in the legislative mechanism, at least in the
common law countries. The judges, not only declare laws, by resolving the disputes by
interpretation of law, but also create law, by filling the gaps between the laws. It therefore
becomes necessary to carry out research into some of the pertinent questions that associate
with judicial process like whether judges make law, should they do so, limits on their law
making process and their background as it plays an important role in their decision making
process.
Similarly lawyers also have a major role in the decision making process. Their conviction
depends on their training, education and background. They are also considered as officers of
the court who assist the judges in arriving at the decision. Their behavioural study thus
becomes an important aspect.
Legal research, therefore, takes into its ambit:4
1. Doctrinal Research- It is a research into legal rules, principles, concepts or
doctrines. It involves a rigorous systematic exposition, analysis and critical
evaluation of legal rules, principles or doctrines and their inter-relationship. It
arranges the existing law in order and provides thematic parameters for such an
order. It also concerns with critical review of legislations and of decisional
processes and their underlying policy.
2. Research in theory- It involves an inquiry into conceptual bases of legal rules,
principles or doctrines. It provides stimulus and intellectual infrastructure for
empirical research as well as for advancements in law through legislative, judicial
and administrative process.
3. Empirical investigations- It assesses impact of law and reveals the gap between
legal idealism and social reality. Perceiving the idea of law as a social phenomenon,
4 Ibid at 26
a researcher explores social, political, economic and cultural dimensions or
implications of law.
4. Reform-oriented Research- It, based on empirical study and critical examination
of law, recommends changes in law and legal institutions.
IMPORTANCE OF LEGAL RESEARCH
Law is a social phenomenon. There is no stream of knowledge which is untouched by
law. Law does not operate in vacuum. It is for this reason, that law is called as a living
organic thing. It is dynamic, which has to change with the changing needs of society.
Therefore, the legal research becomes important to attain the following objectives:
a) Ascertainment of law:
Since the law is a dynamic branch of knowledge, it can never be regarded as perfect. If
our numerous laws were perfect, if social control were automatic, legal scholarship, like
the State of the Marxists, could be left to wither away. But our laws are not perfect and
final, and cannot be so in a dynamic society: they are not always even intelligible, and if
intelligible, not always intelligently made.5 Therefore, it becomes essential to find out the
law on a given topic by making a systematised methodology. It includes not only looking
into statutes, but also the various scattered secondary sources like judicial
pronouncements, law commission reports, opinions of various eminent jurists etc.
b) Finding out the gaps and ambiguities in law:
No law can be considered to be perfect, for the unpredictability of the future. The
provisions of the law may be inconsistent with the objectives of the law, or some aspects
may be too ambiguous, or some aspects may be against the constitution itself and
likewise. A legal researcher, through systematic analysis, may be able to highlight these
gaps and inbuilt weaknesses of the Act or its provisions.
c) Determining consistency, coherence and stability of law:
A legal researcher, through critical examination of legal propositions, rules and doctrines
embodied therein, in the light of interpretations thereof and legislative policy of the
statute, can, with apt analysis and supporting reasoning, exhibit consistency and
coherence or otherwise of a given law. Such an analysis helps in the development of law,
legal provision or doctrine, as the case may be.
5 B A Wortley, Some Reflections on Legal Research After Thirty Years, 7 Jr of the Society of
Public Teachers of Law (New Series) 249-250 (1964-1965).
d) Social auditing in law:
There can be pre-legislative as well as post-legislative social audit. The former lets to
know ascertain the social forces acting to bring the law into effect. It helps to know the
objectives and purpose of law. On the other hand, the latter helps to know the gaps in the
law. It lets one to ascertain the social reality as different from the ideals on which the law
was based. In other words the functioning of the law and the response of society for the
law can be explored. The reasons of failure of a particular law can also be known.
Likewise the future of law also can be ascertained.
e) Suggesting reforms in law:
By conducting an explicit and good research, the drawbacks and de-merits of a law can be
easily found out. The researcher, by applying various techniques and adopting various
types of research methodologies, can prepare his proposals for reform in the law, so as to
make it more effective.
MODELS OF LEGAL RESEARCH:
Law is a social phenomenon having various aspects. Jurists at various times and places have
made their approaches to the study of law from different angles. The whole systematic
rationality about legal theory is linked at one end with philosophy, at one hand and with social
theory at the other. The perception of man regarding laws objectives depends upon thinking
individual and social being. Law is not static but a dynamic one. Research is one of the basic
tools to find out the lacunae in law, or to analyse the law, to ascertain the law and also
suggesting the reforms in law, as discussed above.
The model to be employed for legal research varies according to the purpose for which the
research is being carried out. It may also vary according to the resources of the researcher. The
legal researcher, depending upon focal theme and research goals of his inquiry, resorts to
research tools and techniques and follows a paradigm that differs from others. 6 The various
models and methods applied in legal research may be historical research, comparative
research, critical research, statistical research, analytical research, projective and predictive,
evaluative research etc. some of them have been discussed in details:
a) Historical method:
6 S.R. Myneni, Legal Research Methodology 115 (Allahabad Law Agency,
Faridabad, 2009)
The primary aim of legal researcher using this method is not to make a deep study of
history but to confirm himself to that part of legal aspects which is relevant to his study. In
a historical method of legal research, the law, legal institutions and their developments are
studied. The present day problem will have to be linked with the past events and useful
conclusions should have to be derived. Historical legal research means finding out the
previous law in order to understand the research behind the existing law and the course of
its evolution. This type of research is useful where the present statutory provision has
raised meaningful questions and it becomes necessary to explore the circumstances in
which the present position came about. 7
Historical research may reveal that change in law on the particular lines tentatively under
consideration was thought of earlier and they were discarded for sound and valid reasons. It
would also get revealed that a particular existing law, fully justifiable at the time when it
was passed is no longer justifiable. A researcher may find that the reasons that justified the
original inclusion are not in existence at present.
By historical legal research one can understand the gradual evolution of the law on certain
lines. The general trend of change can be easily ascertained. While doing historical
research one has to transcend the legal field. He may have to apply psychological,
technological, ideological and demographic variables.
Sources of historical data: The researcher will have to study the historical materials such
as Indian legal and constitutional history, history of a particular branch of law etc. The
relevant legislative debates, earlier commentaries in the archives, particular statutes are
also studied. A researcher has to study the social aspects of law also. He has to use the legal
libraries, exhaustively and thus use secondary sources of data.
Essentials of historical method:
Social insight: The researcher should have insight to understand the cause-effect relating
to socio- legal events.
Historical oriented study: The facts and events should be understood and seen in the
historical perspective only then a researcher can draw correct conclusions.
Dispassionate study: He should remain dispassionate while studying the historical
evolution of law i.e., he should study the facts and events as they are.
Imaginative capacity: The researcher should be capable of understanding the topic
discussed by the history of the legal issues. He should have fertile imagination so that he
can draw a complete picture of study.
7 Ibid at 117
Capacity to select: the researcher should possess the quality of selecting and rejecting. He
will have to choose and pick up the material useful and relevant to his study.
Analysing and co-ordinating capacity: the researcher should be able to analyse the
historical material useful for his study and should be able to coordinate with the present
day conditions.
Knowledge of study field: he should have complete knowledge of the legal field of his
study as he will not get ready made material in the history for study work. He will have to
search it out.
b) Comparative method:
The law framers in the law making process often compare the laws with those of other legal
system to find out the shortcomings and merits of each. Schlesinger has observed:
Legal practitioners and scholars in ever-increasing members have intuitively discovered
a simple but significant fact: that when confronted with the same problem, decisionmakers ---, though independent of each other and widely separated by time and space,
more often than not will respond in a similar way.8
However, there are two schools of thought about comparative legal research. The first
school perceives comparative legal research as a mere process, a method of approaching
legal problems. While the second school treats it as a dogmatic science as it aims to
study and collate the law of different countries in a systematic order, with the object of
placing stress upon the resemblances and differences in the rules adopted by various
countries, to solve the many problems coming out of the organized society.9
According to the former school, comparative approach is undertaken to:
a) To initiate acquaintance with foreign law;
b) To animate and modernize the study of private law of country;
c) To prepare an internal law by knowing the way in which the legislature from other
jurisdictions has carried out reforms;
d) To study law common to all.
According to Bryce, the comparative method is concerned with space as the historical
method is concerned with time. It collects, examines, collates the notions, doctrines,
8 Schlesinger, the Common Core of Legal Systems-an Emerging Subject of Comparative
Study, in Tune, Comparative Law, Peace and Justice (1961), cited in W J Wagner, Research in
Comparative Law: Some Theoretical Considerations, in Ralph A Newman (ed), Essays in
Jurisprudence in Honor of Roscoe Pound (the Boobs-Merrill, Indianapolis, New York, 1962) 511
at 527.
9 Supra note 2 at 107
rules, and institutions which are found in every developed legal system, or at least in
most system notes the points in which they agree or differ, and seeks thereby to
construct a system which shall be natural. H.C. Gutteridge says, comparative law
denotes a method of study and research and not a distinct branch or department of
law.10
Comparative research is a method of finding out what the law is in other countries, and
considering whether it can be drawn with or without modification. These days study of
comparative law has obtained much significance. The UNCITRAL of UNO prepared
model international law related to trade, carriage, contracts and arbitration by
comparing the concerned laws of different countries and of different times of
International Law. Legislature follows the law prevailing in other countries and they
incorporate that if that law is suitable to nation.11
In this method, the researcher will often confront with the problem of selecting
countries, books, materials to compare with. For many years, the general tendency is to
study the law prevailing in England, Australia, Canada and other commonwealth
countries with the increase in exchange of legal information we can widen our scope.
The choice of material is another difficulty. He cannot find all the material at one place.
The material may not be of uniform standard. Doubts may arise of its reliability and
accuracy. The comparative jurist will mainly refer to such legal systems that are likely
to supply him with special stimulation for the problem he examines.12 While using the
primary, secondary and tertiary sources a researcher must be vigilant. He must check
and cross check the sources. Availability of foreign literature on legal issues is difficult.
A researcher may find it very difficult to visit foreign countries because of financial
difficulties. In addition, language problem also persists. The researcher cannot use the
books in German, Japanese language and requires translation of those source books.
c) Statistical method:
10 Supra note 6 at 119
11 Ibid
12 Supra note 6 at 518
Statistical legal research means a systematic investigation into the quantitative aspects
of a particular legal phenomenon that requires collection of numeric data and use of
statistical analysis to interpret that data. Importance and significance of statistics in
social research is considerably in our modern times, when the figures are playing a
significant part. Since figures help in understanding data and make that easy and
understandable, therefore, in legal research their use is increasing. The figures provide
detailed description and tabulation as well analyse data without subjectivity, but only
objectively. Statistics in legal research helps in gaining reliability and accuracy. It
becomes possible to convert abstract problems into futures and complex data can be
reduced in the form of tables. This perhaps is the reason that today no serious study can
be carried out without the help of statistician.
Statistical methods are the mathematical techniques used to facilitate the interpretation
of numerical data secured from groups of individuals or groups of observations from a
single individual. The statistical methods are classified into four sets of techniques
according to the major purposes that they are intended to serve. The first set of
techniques enables us to organise group data, to describe and interpret these data in
terms of derived measures of central tendency, of variability and to portray these data
into graphical form for more convenient interpretation or more ready assimilation.13
The second set of techniques will be useful to describe quantitatively the limits within
which he may safely generalise about large groups or populations on the basis of facts
derived from relatively small groups or samples selected at random from these
populations. The third set of techniques will help to describe quantitatively the degree of
relationship existing between measures of different characteristics. 14 The fourth set of
techniques will enable the student to describe quantitatively fluctuations occurring in
time series, to isolate these variations and to eliminate their influence from the basic
data when this is deemed desirable.
d) Critical method:
13 P Saravanavel, Research Methodolgy 358 (Kitab Mahal Publications,
Allahabad, 16th ed., 2013)
14 Ibid
In a critical method, the researcher does not seek to find some new fact but makes a detailed
commentary or critical evaluation of a law. The purpose of the critical method of legal
research is to review or critically evaluate a law or legal system. To evaluate critically implies
to ask about the ideas and information present in the law, to comment thoughtfully by
engaging in a process of evaluating and making judgments about the validity and relevance of
the law. To be critical does not mean to criticise in an exclusively negative manner. To be
critical of a text means you question the information and opinions in the text, in an attempt to
evaluate or judge its worth overall.
In critical method, you approach data from different angles because you want to investigate
rival notions in the light of evidence each brings to bear on the problem at hand. Through
contrastive inference you seek to arrive at that notion which appears more plausible in the
light of the overall evidence. Your interest is not just to test a particular idea in isolation. What
matters is to compare ideas. The implications are that you do not merely accept an idea
because some evidence points towards it, because it may support other ideas equally well, and
you pay particular attention to evidence which goes counter to an idea, because it may point
towards a superior notion.15
Research in the critical tradition is characterised by reflexivity, involving forms of selfconscious criticism as part of a strategy to conduct critical empirical research. Researchers
explore their own ontological and epistemological assumptions and preferences that inform
their research and influence their engagement with a study. By intentionally expressing,
questioning, and reflecting upon their subjective experiences, beliefs, and values, critical
researchers expose their ideological and political agendas.16
Thus, in a critical legal research, the researcher tries to analyse a law from various
perspectives. The law on a particular point has to be appraised from the view point of its
effectiveness, drawbacks, social reaction towards it and from personal point of view of
15 5 Critical review of research approaches available at:
http://labspace.open.ac.uk/mod/oucontent/view.php?id=449239§ion=5 (visited on August
29, 2013)
16 Doing Critical Is Research: The Question of Methodology, available at:
http://wwwdocs.fce.unsw.edu.au/sistm/staff/2001CecezKecmanovicchapteronCISresinTrauth_ed_corrected.pdf (visited on August 29, 2013)
researcher as well. Therefore the researcher has to be very meticulous in adopting the critical
model of research.
e) Collative research:
In a collative research, the researcher collects all the relevant laws, bibliographies or case
laws on a particular point or during a particular tenure. It may be a digest of laws, statutory
provisions etc. it may also contain a summary of it. It would be a mistake to undermine this
type of legal research as inferior to other types of legal research. Properly collated legal
material, which is reliable, reasonably extensive and classified logically, is as much
contribution to legal writing as any other material. A well-collated material will serve a useful
purpose by reducing the labor of researchers. It offers reliable versions of the law. Collative
material has its own value and collative research is an end in itself.17
f) Evolutive and evaluative:
In an evolutive model of research the researcher seeks to trace the evolution of law, as to how
a law or a particular principle of law came into existence as it is seen today. He attempts to
trace the origin and development of a law, or a legal institution. It can be done by either
framing a time line of its development or by taking into notice of the facts and circumstances
that lead to its evolution.
Evaluative model of legal research aims at expounding the logical coherence of concepts,
elements, facts and interests of legal phenomenon individually, of their relationship inter se
and their relationship with the concepts, elements, facts and interests outside the legal system
for determining and defining the terms and presuppositions used in law. The research is to
ascertain the nature, scope and source of law in order to explain what law is, and also to spell
out several propositions used in law.18
g) Projective and Predictive:
A projective model of legal research is used to anticipate and highlight effects of draft
legislation or a proposed legal measure. Such a legal research is mainly attitudinal, intended
to anticipate the probable response in terms of rejection or acceptance of a proposed measure.
Its purpose is to identify the parties who stand for and against the proposed law or legal
measure and to locate determinant variables and situations for peoples apathy or sympathy.
Predictive model is used when a legal researcher intends to anticipate and highlight possible
misuse of the proposed law or legal measure. Such a legal research helps the lawmakers to
17 Supra note 2 at 105
18 Supra note 2 at 103
minimize or to do away with the possible undesirable consequences of the proposed measure.
Predictive legal studies are generally carried out by Law Commissions, Parliamentary
Committees or Joint Select Committees, invariably, before a proposed legal measure takes
formal shape and becomes operational.19
CONCLUSION:
The usefulness and efficacy of a particular model of research depends upon purpose of
research. The researcher has to wisely choose the model he requires depending upon his
research objectives and purposes. It is therefore advisable that a researcher should, firstly,
analyse his research questions and thereafter decide as to which model suits his study. The
task of choosing a particular model for research is of utmost significance. If the model opted
19 Supra note 2 at 105
does not suit the research questions and objectives of research, the whole research process
would go futile.
To call any of the research models as perfect would be wrong. Every model has got its own
merits and demerits. If the researcher wants to study the evolution or historical background of
a law or legal institution, historical method would be the most pertinent model. However,
using this model, one cannot get to have comparison with laws in international field or
foreign laws. Similarly, comparative method does not seek to find out the evolution of law or
the circumstances that lead to enactment of a particular law. Statistical method can be used to
understand the cause and effect relationship or correlation between two variables numerically,
even those which are quite abstract. The demerit of this method is that the phenomenon
cannot be described using this method.
Legal research is a complex process. To find out new facts and knowledge, a systematic and
scientific approach has to be adopted. The process becomes more complex because law
cannot be understood and studied in isolation. Law has an impact on all the fields of
knowledge and all the strata of society. Law get affected by it too. Therefore, it is needed for a
good research, that all of these are studied carefully. Moreover, law is an organic and living
component, which makes it dynamic. Law changes the society and gets changed by society
too. To make the research concise, effective and fruitful the researcher requires to analyse his
research questions, and to adopt a good methodology and model for research. It not only
gives good results but also minimizes the unnecessary input of time, energy and money.
