76090 Research Methodology
Notes 2018
Table of Contents
1. The Nature of Legal Research and The Research Topic………………......…..2
2. Research methodologies: Doctrinal and theoretical……………......…………13
3. Library and technical research skills/Developing a Research Proposal….....19
4. Research Methods: Empirical, Comparative and Interdisciplinary…...………26
5. Developing a Research Proposal…………......………………………………...33
6. Literature Review…………………….........……………………………………...37
7. Writing Style…………………………………......………………………………...39
Topic 1: The Nature of Legal Research and
the Research Topic
Set readings: Hutchinson Ch1 pp 5-11, 21-23 (Choosing a methodology) and Ch 6.
What is Research?
The OECD definition of ‘research and experimental development’ highlights the
importance of creativity, originality, and systematic activity that increases the world’s
‘stock of knowledge’
The Australian Standard Research Classification (ASRC) has attempted to classify
research undertaken in Australia. The types of activity include:
● Pure basic research
● Strategic basic research
● Applied research
● Experimental development
Pure basic research
Experimental or theoretical work undertaken primarily to acquire new knowledge
without a specific application in view.
It is carried out without looking for long term economic or social benefits other than
the advancement of knowledge and includes most humanities research.
Strategic basic research
Also an experimental or theoretical work undertaken primarily to acquire new
knowledge without a specific application in view. However, it is directed into
specific broad areas in the expectation of useful discoveries.
Provides the broad base of knowledge necessary for the solution of recognised
practical issues.
Applied research
Original work undertaken to acquire new knowledge with a specific practical
application in view.
Its aim is to determine possible uses for the findings of basic research or to
determine new methods or ways of achieving some specific and predetermined
objective.
Experimental development
Systematic work using existing knowledge gained from research and/or practical
experience, for creating new or improved materials, products, devices, processes or
services.
In terms of social science, experimental development is defined as ‘the process of
transferring knowledge gained through research into operational programs’.
This type of activity aims to provide a national and international measure for the
research being undertaken in all discipline areas, and also in government,
universities, and business within Australia and globally.
What is Different About Legal Research?
The Pearce Committee, which reviews Australian law schools and the legal research
and publications emanating from the schools has categorised research as
encompassing:
● Doctrinal research: research which provides a systematic exposition of the
rules governing a particular legal category, analyses the relationship between
rules, explains areas of difficulty and predicts future developments.
● Reform-oriented research: research which intensively evaluates the
adequacy of existing rules and which recommends changes to any rules
found wanting.
● Theoretical research: research which fosters a more complete
understanding of the conceptual bases of legal principles and of the
combined effects of a range of rules and procedures that touch on a particular
area of activity.
These categories reflect a conservative but realistic view of the limits within which
legal writing had developed to this point.
Many doctrinal researchers tend to take a reformist approach but, traditionally, law
reform-oriented research has been undertaken within law reform commissions. The
reform process has become more open, with reform agendas being undertaken
within individual government departments.
The 1982 landmark study on the state of legal research and scholarship in Canada,
the Arthurs Report, includes a 4th category covering non-doctrinal
methodologies:
Fundamental research: research designed to secure a deeper understanding of law as a
social phenomenon, including research on the historical, philosophical, linguistic,
economic, social or political implications of law.
Changing Research Paradigms
Is doctrinal methodology part of the accepted legal research paradigm?
One of the main difficulties facing legal scholars is the lack of a legal research
paradigm. Without a paradigm, Peter Ziegler, academic, warns that all factors may
seem equally relevant. All research, including every exploitation of case law or
legislation, may be equally random and valid.
Ziegler suggests that in the scientific world paradigms involve 2 criteria:
1. Theories that are sufficiently unprecedented to attract an enduring group of
adherents away from the existing/competing concepts
2. Theories that are sufficiently open-ended to leave reconciliation of the rest of
the discipline’s domain to be resolved
Ziegler warns that without a ‘steering factor’ or paradigm, there is no direction and
guidance for research efforts, and no basis for selection of the right questions and
data sources.
What is a paradigm?
Paradigms form a model or pattern ‘based on a set of rules that defines boundaries
and specifies how to be successful within those boundaries.’
Kuhn viewed paradigms as a shared frame of reference among researchers that
could be upset by new revelations leading to a generational struggles between young
and old researchers.
Paradigms are shared worldviews, which determine what topics are ‘suitable’ to
study, what methodologies are acceptable, and what criteria may be used to judge
success.
There are other definitions of paradigms available as well. John Jones describes
paradigms as ‘take for granted mind sets’. According to this view, socialisation into
the discipline is instrumental in ensuring that the practitioners and academics take on
these ‘ways of knowledge’.
What facets form the current research paradigm for law?
In law, research success has tended to be measured within a doctrinal framework
that is based on the tracing of common law precedent and legislative interpretation
and change. This has been a vital aspect in what is known as ‘dominant paradigm’.
The dominant legal paradigm is a more outward-looking focus encompassing
interdisciplinary approaches to methodology.
The traditional model of legal research has tended to embrace practice-oriented
research. Increasingly, the extension of this paradigm includes reflection on
knowledge in-practice. This is a way of translating textbook knowledge combined
with the old fashioned ‘know-how’ and the immediate reflecting-in-action which takes
place when a practitioner is presented with a problem.
Choosing a Methodology
Methodology is the means used to gather information and data, and achieve a valid
outcome.
The methodology of any science ‘involves its rules of interpretation and criteria for
admissible explanation, as well as the research designs, data-collecting techniques
and data processing routines that have developed from these rules and criteria.
Therefore, the methodology includes a valid and correct use of the discipline’s
‘preferred instrumentation and data-processing techniques.
Legal research is an intellectual process and requires conceptualisation, planning
and communication. It also requires a broad focus in keeping with the modern
worldview.
There have been overwhelming criticisms made of the doctrinal methodology e.g.
● It is too theoretical
● Too technical
● Uncritical
● Conservative
● Narrow and trivial
● Lack of social and economic significance of the legal process
Law has been viewed as a conservative and staid discipline. The law today is at a
volatile and fluid stage and thus legal research skills are of paramount to lawyers.
Non-doctrinal research is characterised by a lesser emphasis on the primary and
secondary sources of law. Not based exclusively on analysing the written sources of
law - law reports, appeal cases, legislation and parliamentary notes.
Doctrinal research hypotheses tend to originate in subjective ideas and arguments
(‘hunches’) but non-doctrinal research methodologies move beyond an analytical
treatment of existing legal sources to actually test hypotheses.
The research methodology chosen needs to be directly tailored to the purpose of
your research. Your choice of methodology is instrumental. Methodology is
subsidiary to objectives and hypothesis.
Formulating a Research Topic
Planning is an ever changing and crucial aspect of academic writing. Planning is the
stage before writing and researching. There are 2 levels of planning:
● Idea plan - consists of the topic you are writing about, the aspects of the main
subject you intend to develop, your hypothesis and your arguments.
● Research plan - continues off idea plan - how to map your relevant info
(basically the research methodology).
How do you choose a topic and formulate a plan?
● A basic search should be sufficient to identify whether there is recently
published information available about the particular topic
○ Then can move on from there to formulate your own project
● If you choose a topic that you are not familiar with:
○ Need to broadly read the area to have a knowledge base of what you
are dealing with
○ Best to consider issues very broadly before trying to focus on a
specific point or problem
There are several methods that can be useful for defining a topic and for formulating
a plan:
● Brainstorming
● Heuristics
● De Bono’s thinking hats
● Mind mapping your project
● Visual demonstration of ideas
● Horrigan’s project analysis matrix
Brainstorming
Most basic method to kick start the process. Write down everything that seems to
relate to a possible topic without being judgmental or trying to divide or censor your
ideas.
After you have collated the materials, you can begin to assess what might ‘work’ or
be worth pursuing.
When brainstorming, the list of issues that you have drafted represent your views on
the topic. Also need to engage with the views of other people involved in the
problem:
● Stakeholders
● Clients
● Students
● Victims
● Police
Heuristics
More commonly known as ‘idea generators’ are used in problem solving situations
and can be useful in a research setting where the real problem is trying to ‘crystallise’
ideas in order to research and write effectively in an area.
They are brainstorming tricks which include:
● Question formulas
● Attitudinal heuristics (attitude changes)
● Map models (creating maps)
One way of building on ideas is to ask ‘who, what, where, when, why and how’ type
questions. Ernest Stringer has worked out a series of questions geared to change-
based action research, tailored to a problem or work situation. These questions look
like [see below]:
● Who?
○ Who are the stakeholders?
○ Who are the influential people?
○ Who has resources
● What?
○ What is involved in the process?
○ Can the issues be more closely defined?
○ What major activities/events are relevant to the issue?
● How?
○ How do conflicts arise?
○ How do events happen?
○ How are decisions made?
● Where?
○ Where do events normally take place?
○ Where are the resources located?
● When?
○ When is it possible to intervene?
○ When does conflict occur?
● Why?
○ Why is this particular matter important to me personally?
○ Why is it necessary to research and write about this issue?
○ Why might people want to read about it?
Aristotle held that if you answer the following 5 questions about any topic, then you
will understand it better and be able to write clearly. Aristotle's ‘Topoi’ encompasses
5 main issues:
● Definition (what is it?)
● Comparison (what is it like?)
● Relationship (what caused it?)
● Testimony (what has been said about it?)
● Circumstance (what can come of it?)
De Bono’s ‘thinking hats’
Aim of this method is to encourage the examination of an issue from a variety of
angles. It is effective for broad social issues such as euthanasia. Each coloured hat
corresponds to the way of thinking:
● White hat:
○ Thinking without bias
○ Expunge any bias or value judgments from your view
○ Become a computer and take a literal view of the world
○ Take a neutral position
● Red hat:
○ Thinking with emotion
○ You lay your emotions on the table
○ No need to justify your likes and dislikes
○ Lay bare your hunches, gut feelings and guesses
● Black hat:
○ Negative pessimistic view
○ Plays a ‘devil’s advocate’ approach
○ De Bono cites that ‘destruction is always much easier than
construction’
● Yellow hat:
○ Optimistic and positive view
○ Allows an opportunity for positive thoughts and constructive views
● Green hat:
○ Creativity and new ideas
○ Forces lateral thinking or thinking outside the box
● Blue hat:
○ Thinking about the big picture.
○ Conductor who attempts to orchestrate, record, observe and provide
an overview of everything.
Topic 5: Developing a Research Proposal
Developing and Refining the Topic
1. Map out a topic area that excites your interest
2. Explore the boundaries of the issues involved
3. Isolate a specific part of the whole
a. Can identify an issue through experience in the field
To improve in developing and refining the topic, the best thing is to teach in the area,
attend conferences, and write conference presentations, join writing groups and
make contacts with people in the area.
What about Originality?
- Dont worry too much about originality - there is nothing new under the sun in
the law
- Scholarship thrives on the use of what other scholars have done
- New researchers (and esp when writing your thesis) can write about the law
at the edges, or how it may develop in the future.
What should you include in the Research Proposal?
1. Propose a literature review of your selected sources
2. Verbalize your objectives and hypothesis
3. Contextualise what you are attempting (acknowledging the extent of your
existing involvement in the research area + how this affects your
methodology)
Writing a Summary or Abstract
An abstract is a separate writing genre and must be crafted with care. It is a
summary of your main points. It is a condensed or abridged version of the whole.
An abstract is required if you propose to present a paper at a research conference,
when you submit an article to a refereed journal and in a thesis.
