LEGAL RESEARCH

INDEX

DEFINITIONS

Definition of research and legal research.

TYPES OF LEGAL RESEARCH

Legal research - Exploratory

Legal-Descriptive Research
Legal-comparative research,
Legal-predictive research,
Legal-projective research,
Legal-historical research,
Legal-documentary research
Field Research - Legal (Population and Sample)
Propositive legal research

SOURCES OF LEGAL RESEARCH

Main legal sources

Legal-Dogmatic Model,
Realist-Materialist Legal Model

METHODS OF LEGAL RESEARCH

Exegesis Methods,
systematic method,
sociological method
historical method,
analysis method
method of integration of law,
free research method
deductive method

LEGAL CURRENTS
 Natural Law
Normativism
Iusrealism
Iusmarxism

TECHNIQUES OF LEGAL RESEARCH

Historical
Systematic
Read Data
Read Rerefenda
Mixed and Eclectic
Comparative Research Model

DOGMATIC RESEARCH
Statement of the Problem
Statement of the Problem
Hypothesis
General objective
Justification
Framework
Theoretical Framework

Conceptual Framework
Legal Framework
Contextual Framework
Methodological Design.
Schedule
Budget
Table of contents
Bibliography
DEVELOPMENT

DEFINITIONS OF LEGAL RESEARCH

Research in the field of legal sciences represents a brief

review of the new facts that are discovered day by day, allowing one to know about
I delve into the origin of the problem by exploring possible solutions to many.
questions that arise.

Research is the action and effect of investigating, a set of techniques,

methods and procedures used to solve problems through a
logical ordering, using objectives as a starting point.

According to Mario Tamayo, legal research encompasses all those activities

intellectuals, who aim to discover adequate solutions for problems that
It raises social life, which involves the need to delve deeper into the analysis of it.
problems.

According to Álvarez Undarraga, legal research is the set of

procedures of a reflective, systematic, controlled, critical, and creative nature, whose
the objective is the search, inquiry, and study of norms, facts, and the
values, considering the dynamics of social, political, and economic changes
cultural events that develop in society.

these problems can be determined through methods and techniques that

they represent the art of research, which must possess a
set of skills, techniques, and procedures that must be applied to locate
the source of the information, such as reading, highlighting, locating the
main and secondary ideas, drafting summaries and notes, in addition to the
management of techniques and procedures for which it is proposed that it requires a
selection of an appropriate topic, of the study object and of a good
statement of the problem to carry out an investigation and solve a
problem.

These skills are referred to as techniques and procedures that serve to

useful tools for legal research as they are applied on a daily basis
both for students and for lawyers, since it is an easy way to
collect information, ideas on a legal or general topic of interest.
TYPES OF LEGAL RESEARCH

In the legal field, there are a variety of ways to investigate for a

work, as law as a discipline can be investigated in various ways
always in agreement as it fits the problem statement and its
objectives, as these will indicate how to direct the research. And these must
be guided by a methodological tutor who will choose the type of research that
more fits the guidelines of your problem.

LEGAL-EXPLORATORY RESEARCH: is one that is used

when the topic to investigate is little known, when it comes to giving the
initial knowledge of a legal problem, here the objective of the
Investigator is to explain, describe, that is to say, to pave the way for others.
research. It thus constitutes the starting point and one of its purposes.
It will establish preference for future legal research.

JURIDICAL-DESCRIPTIVE RESEARCH: aims to achieve the

description of the subject that is studied, interpreting (what it is), uses the
analysis method, and in this way the legal problem will be decomposed
in its various aspects, allowing to provide an image of the
functioning of a legal norm or institution as it is.

LEGAL-COMPARATIVE RESEARCH: this type of research

aims to achieve the identification of similarities and differences that
may be found in legal systems, in which the researcher
wants to know if the compared systems are similar or different.

PREDICTIVE LEGAL RESEARCH: it is also known as

feasible project, as it consists of developing a proposal or a model of
solution to a legal problem, this type of research is concerned with how
things should be done to achieve their goals and function
adequately, here the researcher must justify the need for
develop action plans for modifying the current event.

HISTORICAL-JURIDICAL RESEARCH: this type of research deals with

of knowing the background the origin of a norm or an institution
legal, it is a search for events of the past, that is,
describe what has already occurred. (try to reconstruct it in a way
objective what the law was in the past, based on evidence
documentaries) its main feature consists of the discovery of
general principles, based on previous results, for this it is
 It is necessary to plan the methodology for collecting and analyzing the data.
obtained through various sources and be objective.

DOCUMENTARY RESEARCH: it is the research that studies

problems with the goal of expanding and deepening the knowledge of your
nature, with support, mainly, in previous works, information, and
data disclosed by print, audiovisual or electronic media, the
the originality of the study is reflected in the approach, criteria,
conceptualizations, reflections, conclusions, recommendations and, in
In general, the author's thought.

FIELD RESEARCH: It is the one that is conducted directly in the

medium where the study phenomenon is presented, is supported by techniques of
information gathering such as observation, interview, and survey.
And two important elements are also involved, which are

oThe population, which is the totality of objects and people, that

they agree on common characteristics, which frame in the
research that is being developed.

A sample is that selected part of that set which is the

population, the selection of the sample, is a means to know
characteristics of a population.

LEGAL-PROPOSITIVE RESEARCH: this type of research

It is aimed at making a proposal for a change or legislative reform.
including the drafting of a legal norm.

SOURCES OF LEGAL RESEARCH

The sources of legal research are those that allow the

researcher obtain and find what is sought: legal knowledge, for the
legal researcher the elements of primary sources are:

The Law: the one that represents the formal legal source par excellence, and is
taken as the unique and exclusive source of legal research.
Jurisprudence: it is an important source that represents orsamplethe criterion

constant of the judicial organs.

 Doctrine: it is an extremely important source of consultation, because
understand the opinion of qualified individuals who, in one way or another,
influence onthe statethe current or future of law.
Social reality: it is the most important source, being the most complex,
that your analysis implies a high degree of ability to separate and join facts
, since what is analyzed is the present and the facts that may give rise to
to futuressystemslegal orinstitutionslegal.

Dogmatic Legal Model

It is the one who is responsible for studying law from a legal perspective,
formalist, through which the student who chooses this research model
will work with formal sources that integrate the legal system, elements
like the law, analogy, general principles of law, etc., it is a model
independent of society, since its purpose is to study structures of
Law. The research techniques used are:

The recruitment of legal information, whether according to the identification of the

source, worksheets or documentary, highlighting and summarizing.

Realistic-Materialist Model:

It is responsible for studying law as a social science, it goes from the

hand with legal sociology, presenting itself as totally dependent on the
society unlike the dogmatic which is independent of society, therefore
that the legal norm must assess the functioning of the law, where the
The researcher's job will be to evaluate social, political, economic facts, among others.
others, that give rise to the norms, some techniques of this model of
they are research.

Observation, Surveys, The interview.

METHODS OF LEGAL RESEARCH

In law as a social science, it is responsible among other things for analyzing

through various techniques, the content and theoretical scope of legal texts
that uses, in this way legal scholars can
investigate the objective of the research and the legal norms that offer
the sources of law, then we can say that legal methods;

They are all those logical procedures for investigating the causes
of the purposes of law, for the knowledge and interpretation of its sources, for
the structure of their positive and technical texts and for teaching and dissemination of
same.

Whatever the research model assumed by the researcher is dogmatic.

The realist-materialist must use a research method that brings him closer to
phenomenon according to the epistemological position (study of knowledge) that
it is assumed.

EXEGETICAL METHOD

Exegesis is the expository method in legal works that follows the order
the positive laws, whose interpretation mainly ascends.
Its origin took place in France with the development at the beginning of the 19th century,
the school of exegesis is based on the idea that legal interpretation must consist of the
consultation of the law as the sole and exclusive source of law, for the exegetes the
Law is the law and jurists must adhere to the will of the legislator.

For Giraldo, the content of a norm must adhere to the will of those who create it.
this will can be apprehended through the semantic analysis of the
words, or from the logical study of the norm, or from the meticulous review of the
historical authorities of its formulation such as the statement of reasons, is the
exegetical method.

The purpose is to highlight the willingness of the legislators according to:

Semantic analysis, logical and grammatical analysis

Historical Analysis and Analogical Interpretation

To this effect, the exegetical method and the school of exegesis present the
positive law as a whole, constituted by the law with a directed interpretation
to seek the intention of the legislator.
Characteristics of the exegetical method:

The law is the only concern of the jurist as the law is enclosed in
the law
Use grammatical elements such as morphology, spelling, and the
semantics
Legal omnipotence of the legislator (the only possible interpretation)
At the time of creating the law, the will of the legislator cannot be substituted.

SYSTEMATIC METHOD

The one who originated this method was Kelsen who incorporated this term into the
legal sciences and pointed out, "the law is not as it is sometimes believed, a norm.
It is the set of rules that have the type of unity we refer to when
we talk about a system.
In order for there to be a complete understanding of the rules, it must be known that they form

a set and therefore establish a relationship with each other, constitute a system.

To study and interpret in law, this systematic method must be:

Determine the scope of the interpreted norm based on the institution.

to which it belongs.
To typify the legal institution referred to by the norm, for its analysis and
interpretation.

This method interprets the law through two elements, the norm and the
legal institution to which the norm belongs.

METHOD OF ANALYSIS

It consists of an analysis of the facts based on the events that occur in

reality, through it we can reach the main source of why they happen
the facts.

Sociological Method

This research method conceives of law as a set of laws.

that emanate from a social reality, is a dependent variant of a reality
Social is a dependent variant of it, concerned with its reach and meaning.
the norms should not be established except in relation to an existing social structure,
that is organized on an institutionalized legal basis.

This method conceives of law as an exclusively social product, by

what studies social facts and is represented in two schools:

School of legal sociologism: represented by Emile DURKHEIM,

who affirmed that "The visible symbol of social solidarity is elaborated in
the collective consciousness and it is necessary.

School of Legal Historicism: whose representatives were

MONTESQUIEU and SAVIGNY who asserted that 'The law
it evolves and transforms constantly, because it was developing over time
that modifies it, and transforms with total and complete independence of the
individual wills and according to the various manifestations of the
popular spirit

Historical Method

Interpret the norm through its background, traditions, such as the

exposition of motives, debates, message from the legislative power, consists of knowing
and studying the historical facts that give rise to the legal fact, this method
its purpose is to provide solutions to the legal fact based on interpretation
The historical background that can provide solutions is based on the
principles of the German Historical School, which considered 'that each people
he has, in each era of his life, laws and institutions suited to his way of being,
reflection of the spirit of the people, which acts on customs and traditions, until
become legally binding norms of obligatory application.

METHOD OF INTEGRATION OF LAW

It allows the jurist to resort to other sources for the resolution of conflicts.
when it does not find it in the law, since it expands the field of legal research
to obtain a solution to the problem posed, for this method the customs
they constitute the main indirect source of law, when there is no provision
needs the law.
METHOD OF FREE RESEARCH

It is used with the purpose of seeking true justice that sometimes

it distorts within the established norms and then it is given to the judge the
authority to decide on the matter discussed, in order to clearly issue the
statements about the case or subject to be addressed.

DEDUCTIVE METHOD
Created by the philosopher ARISTOTLE, it is the method that starts from the universal.
specifically, it goes from the abstract to the concrete, its purpose is to arrive at the solution of the

problem starting from the legal norm towards the legal one, is used to infer from it
general to specific.

INDUCTIVE METHOD
It has its origins in the 17th century with BACO and GALILEO, it goes from the particular to the

In general, this method belongs to the discourse genre, where one obtains the
knowledge gradually and uses reasoning.

COMBINATORIAL METHOD

This research method, although in one of its stages, is

essentially experimental, the other stages that make up the method escape from
its framing in that classification.

PHENOMENOLOGICAL METHOD
It is a method that tries to immediately understand the world of man,
through an intellectual vision based on the intuition of the thing itself, that is, the
knowledge is validly acquired through the intuition that leads to the
immediate and original data.
The present phenomenon is the object of reflection of the experiences reflected in the
consciousness.
Phenomenology is based on the analysis and description of immediate data of the
pure consciousness in an intellectual intuition that allows revealing the essence of the
ideal objects. It consists of examining all the contents of consciousness,
determine whether such contents are real, ideal, imaginary, etc., suspend the
phenomenological consciousness, in such a way that it becomes possible to adhere to what is given

take into account such and describe it in its purity.

Legal currents

IUSNATURALISM

Natural law is a philosophical or thought current developed in the

scope of therightas the foundation of human rights. For the
natural law, the origin of this type of rights is found in nature itself
of the people.
It is a set of currents with different foundations, but with common traits that
they allow them to be grouped. Sometimes there is an intention to reduce natural law to a
legal interpretation; to the philosophical doctrines of an eminently
metaphysical that links law with a principle that goes beyond the material.
However, within natural law currents, theories coexist that attribute
to the right an ultraterrestrial base, much above the human legislator and
perhaps connected to the divine; the same interpretations can be found
exclusively focused on the human, or some that result from the
combination of the most advanced technical innovations and the original idea of the
law that goes beyond human will.
For Osear Correas, natural law has an 'inevitably' content.
metaphysical, it is a 'legal metaphysics' because the existence of a nature
humanly based in one way or another on 'natural rights'.
Historically, it appears as one of the first attempts to define law and
to inquire about its essence; its fundamental concerns
They revolve around the questions: what is law?, what is its value? and what ...
its end? For Manuel Ovilla, what characterizes all those currents is defining the
law in function
a) Of the values that must be protected.
b) Of the aims pursued by justice, freedom, the common good, security.
legal and equality.
In natural law, at least two types of law are admitted: positive law and the
natural; but what truly characterizes these positions is that
they recognize the primacy of 'natural' norms over positive ones, of
human and earthly origin.
Some currents of natural law are:
Naturalist natural law
Catholic tradition natural law
Rationalist Natural Law

IUSNORMATIVISM

Elnormativismo is a theory of Law developed by Hans Kelsen, that

he intends to 'strip himself' of any ideological thought, and establishes a
legal system based on the hierarchy of norms.
Legal positivism can be considered as part of the philosophical current.
initiated by Auguste Comte in the 18th century. For this author, humanity goes through
for three successive stages: religious, metaphysical, and scientific or positive. In the beginning,
how human beings ignore the causal relationships that exist between the
natural phenomena, they fear and attribute their existence to forces
supernatural (gods and higher spirits); afterwards, by means of the
reason purifies the plurality of idols until it considers only one (the passage from
from polytheism to monotheism); and finally, even this loses its attributes
supernatural and becomes a metaphysical principle. However, progress does not
it stops there, but rather the gradual understanding of the causes of phenomena
create a world where eMystery gives way to problems (unknowns
to be resolved, which are perfectly knowable.
In such a context, legal positivism arises, comments Ovilla: "the positivists of
In the 19th century, they thought that natural science consisted or was fundamentally built upon,

of two issues: verifying facts and establishing laws. Sensory perception -they said-
discover the events, and the laws are established by generalizing, by deduction, those
facts. Thus, under this influence arose what we know as legal positivism.
In an essay that has become an essential reference in any study
Regarding legal positivism, Norberto Bobbio mentions that three should be distinguished.
ways to approach legal positivism
a) As a way of approaching the law
b) As a theory of law
As an ideology of law
The division made by Bobbio has its reason for being in the concern to separate between
the different measures and notions that the definition of positivism has. He believes that
a large part of the criticisms made in contemporary times to the thought of
Cornte, they derive from a lack of determination of the level at which it is spoken of.
"formalism", due to the close relationship that legal positivism has with the
formalistic current.
The way in which legal positivism is linked as a way of studying the
Law and as a theory, it is historical for Bobbio. The structure and the coincide.
strengthening of the modern state (18th century); the monopoly of power and the
creation of legal norms by the authority, with the distancing of the
natural law stances, Logically it was feasible that the study of law would
centralized around the apparatus that concentrated normative production.
As a legal ideology, Ovilla comments: 'it is a stance facing a'
circumstance based on a value system, independent of its content.
Ovilla refers to the apparent lack of values and the disconnection with the
ideal right In this sense, a positive merit will be attributed to the existing justice
for the simple fact of being real; that is, emanating from a sovereign will. The
law is just for being true: "the criterion for qualifying the justice or injustice of
the laws perfectly coincide with the one adopted to judge their validity or
nullity.
One of the most notable facts of Bobbio's study is his conclusion.
regarding the relative independence among the three aspects that can be
to conceive of legal positivism, which can be attacked and criticized as ideology, and
leave it intact as a way to approach the law and even, it can be respected
the statist theory that involves positivism itself.

IUSREALISM

Elium realism is a movement based on the validity of norms.

It is found in their effectiveness, making it known that it is
important the content, the form and above all the application of the rules.
In the realm of positivisms, legal realism and sociological realism are also located.
legal or iusrealism. It can be considered a positivism because it aims to,
just like legal positivism in its strict sense, to unlink legal science from
philosophical speculations.
Legal realism bases its legal conception on 'living' law, what really is
fulfills in society.
The generic characteristic of iusrealism consists in the importance given to
they grant to the current law; that is to say, to the one that is enforced in social reality,

phenomenon on which legal science must be founded.

ParaOvillase establishes a direct relationship between legal realism and itself.
as a theoretical position (or rather, philosophical):
Realism is a theoretical position according to which there are independent real objects.
of our consciousness. There are several types of this current, ranging from the primitive
up to the volitional and the critical.

According to the premises of critical realism, iusrealism is structured.

which aims to solve three major problems:
The concept and nature of law:
The purpose or idea of law; and
The interaction between society and law.

IUSMARXISM
Jurixmarxism legal critique. Marxism is a philosophical, political, and
economic based on the ideas of Karl Marx and Friedrich Engels, which
mainly characterized by rejecting the capitalist system and defending the ideals
of class equality.
ElJusmarxism asserts that law directly responds to interests
from the upper class, which acquires its wealth from the workers through the system
of capitalist production, however, it should be clarified that the sciences,
including the law, both in communism and in capitalism are made
to protect those who hold power, whether economic or political.
Marxism seemed to constitute an option at the end of the 19th century and the beginning of the 20th.

confronting the vices of an economic-political system characterized by a

evident material inequality; due to the concentration of wealth and property of
the means of production; by a vast colonialism. but that on the formal level
defended the legal equality of human beings before the law.
Marxist theories of law have in common that they use the method of
dialectical materialism to analyze the link between law and structure
social.
Iusmarxism is not a direct creation of Marx and Engels, but of their followers, and
does not constitute a uniform vision but rather a multiplicity of opinions regarding it
legal.
It is also necessary to differentiate between 'iusmarxism' conceived as the
Marxist interpretation of law that subjects or conditions its existence to
the characteristics of the economic structure, which find their simplest expression
in the manuals that state: 'the law is an expression of the dominant class, it is the
instrument through which the bourgeois class maintains its dominance over the
proletariat," and as a more detailed and critical study, through sociology,
the sociology of knowledge and Marxist-oriented economic analysis, which tend to
to give a certain independence to the legal phenomenon, not establishing from
such a direct way the relationship between the interests of the dominant class and the law.
In this sense, it would be too easy to characterize 'iusmarxism' with the
ideologized expression of the discourses of Marxist-Leninist dogmatism and, in view
of the current situation of the societies where there was 'real socialism', the criticism of a
The Marxist concept of law would be equally easy and simplistic.

DOGMATIC RESEARCH TECHNIQUES

Historical
This type of research seeks to reconstruct the past in the most objective way possible.
as accurately as possible, for which it systematically collects, evaluates, verifies and
synthesize evidence that allows for valid conclusions, often
derivatives of hypotheses. Jurisprudence.

Systematic Method

It is a process by which apparently isolated facts are related and

formulate a theory that unifies the various elements. It consists of the gathering
rationale of various dispersed elements in a new totality, it is presented
more in the formulation of the hypothesis. The researcher synthesizes the improvements
in the imagination to establish a tentative explanation that will be put to the test.
Also as systematic thinking, we find that it is a method that consists of
in identifying some rules, some series of patterns and events to
prepare ourselves for the future and influence it to some extent. It is aimed at shaping the
object through the determination of its components, as well as the relationships
among them. These relationships determine, on one hand, the structure of the object and on
another its dynamic.

Read Data

Interpretation of one or more rules of the current legal system. No

it intends to modify the arrangement, but to interpret it through an adaptation to
a reality offering practical solutions that account for the universe of your
application.
Descriptive structure
The indeterminacy
Semantic determination
Teleological determination
Systematic compatibility
Historical analysis
Logical consistency.

Proposed Law

It operates on two nuclear elements, the first is that it is part of the legal system.
in force that is accepted in its entirety, but also its rules of modification, and the
second for which its claim is not a cleanup through an interpretation
leaving intact the rules or studied norms, but instead advocates for their
modification.

Characteristics
It has a dual characteristic: Descriptive/Critical and Prescriptive
Descriptive: expresses dissatisfaction with the current system
Critic: Formulate a critique of the system
Prescriptive: Advocates (promotes) its modification.

Eclectic Method

For to speak of the method eclectic we must to give a to know

Eclectic comes from the Greek ἐκλεκτικός which means 'choosing'.
general terms eclecticism consists of using the best elements of
several methods to form a new one; but added to a defined idea

The comparative method: comparison or contrasting

The comparative method (of comparison or contrasting) consists of putting two
or more phenomena, side by side, to establish their similarities and differences
and from this draw conclusions that define a problem or establish paths
futures to improve the knowledge of something.

DOGMATIC RESEARCH

Statement of the Problem

The statement of the problem describes a problem or issue that needs to be addressed.
resolved.

Problem Formulation

The formulation of the research problem is the stage where it is structured.

formally the idea of research. A good formulation of the problem
necessarily implies the delimitation of the research field, establishes
clearly the limits within which the project will be developed

Hypothesis

Assumption made based on some data that serves as a basis to start a

research or an argument.

General objective and specific objectives.

The general and specific objectives of a project are working tools.

to fulfill the main purpose of the project itself. All these goals must be
be consistent with the strategies and the mission of the work. The project
specific objectives are directly related to the decomposition of work
general.

Justification

Justifying a research is to explain the reasons why one wants to.

carry out. Every research must be carried out with a defined purpose. It must
explain why research is convenient and what the benefits are
what is expected with the knowledge obtained.

Reference Framework

The framework consists of a series of agreements that will employ a

researcher, analyst, observer, in order to be able to follow from them a
research.

Theoretical Framework

It is one of the most important phases of a research project, it consists of

develop the theory that will support the project based on the statement
of the problem that has been carried out.

Conceptual Framework

Conceptual framework is understood as the general representation of the whole

information handled in the research process.

Legal Framework

The legal framework is the set of current rules applicable to the subject that is
intends to investigate.

Contextual Framework

Contextualizing a research work is to describe where (place or environment) it

locate the phenomenon or research problem. It also includes indicating some
From the authors who have researched the topic, what methods or techniques did they use and what

results obtained.

Methodological Design.

Set of procedures to answer the research question and

check the hypothesis. Plan or strategy conceived to respond to the problem
and achieve the research objectives.
Schedule

A schedule is a graphic and orderly representation with such detail that ...
a set of functions and tasks are carried out in a stipulated time and under
conditions that guarantee the optimization of time. The schedules are
basic organizational tools in a project, in the realization of a series
steps for task completion, are ideal for events, are the main basis
of executing an organized production.

Budget

In any research, it is very important to consider the financial resources that

the project requires to reach a successful conclusion. In principle, it is important to know
What resources are available to determine what needs to be acquired?
and based on that create a budget that allows us, from the beginning, to manage
the sources of funding that will ensure the project can be developed
adequately.

Table of contents

A table of contents is a reflection of the structure of a document and contains

the titles of the topics and subtopics that make up the document.

Bibliography

The bibliography is the description and knowledge of books. It is about science.

in charge of the reference study of the texts.