ACKNOWLEDGEMENT I would like to express my sincere gratitude to for providing me an opportunity to do my project work in . I would also like to thank all my friends for helping and making the project successful. This acknowledgement is one way where I can actually thank the people who have been instrumental in the making of this project. project. With their help help the project was done with ease. I would like to thank a lot of people without whose cooperation and support working on this project would not have been so pleasurable and interesting i nteresting..
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CONTENTS SERIAL NUMBER
Name of the Topic
PAGE NUMBER
1
INTRODUCTION
3-5
2
DOCTRINAL RESEARCH
6
2.1
CONCEPT OF DOCTRINAL RESEARCH
6-7
2.2
ESSENTIAL CHARACTERISTICS OF DOCTRINAL RESEARCH
8-9
2.3
TOOLS OF DOCTRINAL LEGAL RESEARCH
10
2.4
MERITS OF DOCTRINAL RESEARCH
11-12
2.5
DEMERITS OF DOCTRINAL RESEARCH
13-14
3
NON-DOCTRINAL NON-DOCTRINAL RESEARCH
15
3.1
CONCEPT OF NON-DOCTRINAL RESEARCH
15-17
3.2
18-19
3.3
ESSENTIALS CHARACTERISTICS OF NON-DOCTRINAL RESEARCH TOOLS OF NON-DOCTRINAL RESEARCH
3.4
MERITS OF NON-DOCTRINAL RESEARCH
21-22
3.5
DEMERITS OF NON-DOCTRINAL RESEARCH
23-24 25-26
5
DIFFERENCES BETWEEN DOCTRINAL AND NONDOCTRINAL RTESEARCH CONCLUSION
6
BIBLIOGRAPHY
4
20
27-28 29
Page 2 of 29
INTRODUCTION
Res Researc earch h is basically basicall y a scientific scientif ic systematic systemat ic investigation investig ation into and study of materials and sources in order to establish facts. The origin of the word lies in the French word “re” meaning ‘’expressing
intensive
force” and
“cerchier” meaning
“to
search”.In a general sense it can be said that research includes gathering of data, information and facts for the advancement of knowledge. But in a formal sense research is performing a methodological study in order to prove a hypothesis or finding the answer of a specific question. Research must be scientific, systematic, objective and must follow a series of steps and a standard protocol.1 Legal Research is a Research pertaining to law. It is the systematic investigation of a legal fact that increases the sum of knowledge pertaining to law. It is an addition of something to an
existing
knowledge,
existing knowledge.
Law
or
refute as
something
per
legal
into
an
research
rd
1. Mona purohit; legal system and research methodology;CLP;3 Edition 2014; Reprint 2015 Page 3 of 29
attracts judicial pronouncemen pronouncements, ts, the prior stages of making and unmaking law, historical antecedents, subsequent.2 There are different methods of research that may be applicable in law. They can be characterized as multidisciplinary, doctrinal, empirical or non-doctrinal research. The main two types of legal research are: : It is a theoretical research and it is pure in nature.
Conventional
legal
sources
like
reports of
committees, legal history, judicial pronouncements, facts passed by legislature and parliament etc are the sources of doctrinal legal research. It is also known as empirical research or socio-legal research and relies on experience and observation.
It
is
a
trans-boundary
research
but
its
foundation is on doctrinal research only. Non-doctrinal legal research tries to investigate through empirical data, how law
2 .http://www.academia.edu/15065282/Doctrinal_Legal_Research Page 4 of 29
and legal institutions affect human attitudes and what impact on society they create. 3
3.Ibid Page 5 of 29
DOCTRINAL RESEARCH
CONCEPT OF DOCTRINAL RESEARCH:
is concerned with legal prepositions and doctrines. The sources of data are legal and appellate court decisions.4 also
called
,
is
not
concerned with people but with documents and differs from the
The doctrinal research means a research that has been carried out by way of analyzing the existing statutory provisions and cases by applying the reasoning power, and that has been carried out on a legal proposition or propositions. 6 Doctrinal research involves analysis of case law, arranging, ordering and systematizing legal propositions and study of
4.http://www.quora.com/In-methodlogy-what-is-doctrinal-research 5.Ibid 6.http://lawdessertation.blogspot.in/2015/09/doctrinal-or-non-empirical-research.html Page 6 of 29
legal institutions through legal reasoning or rational deduction. One of the purposes of the traditional legal research is ascertaining a legal rule for the purpose of solving a problem. Hence quality of doctrinal research depends upon the source material on which the researcher depends upon for his study.
7
As the major portion of the research methodology concerns with the identification of authoritative the sources and use of techniques to find them out, a doctrinal researcher should know how to use a law library. The laws on social welfare have placed great burden on courts of law, in a dynamic society. There will be gaps in statutes and the courts have to evolve doctrinal principles, standards and norms, generally. Further, there will be ambiguity in the statutory language. A word may become vague during its application to a particular case, which appears to be clear during the enactment of law. 8
7.Ibid 8.Ibid Page 7 of 29
ESSENTIAL CHARACTERISTICS OF DOCTRINAL RESEARCH:
9
1. This type of research involves analysis of legal propositions
or legal concepts.
2. In this type of research a conventional source of data is used.
3. Legal propositions from enactments, administrative rules
and regulations, cases of courts etc. can be a part of doctrinal legal research.
4. Doctrinal Research includes research into legal concepts and
principles of all types ' cases, statutes and rules. Doctrinal Research focuses on legal data gathered from case laws, legislation,
journal
articles,
law reform
reports,
parliamentary materials, policy documents, relevant text books etc.
9.Supra note 2 Page 8 of 29
5. Doctrinal Research is a research “into” law and legal concepts
and not “about” la law. w. It is theoretica t heoreticall and pure in nature and hence called arm-chair research. 6. Doctrine is a synthesis of various rules, principles, norms,
interpretive guidelines and values. The term doctrinal in case of doctrinal legal research is closely linked with the doctrine of precedent.
7. Doctrinal Research is a research into the black letters of law.
Here, ascertainment of law is necessary.
8. Doctrinal Researcher makes his research based on secondary
data which is relevant to his proposition.
Page 9 of 29
10
TOOLS OF DOCTRINAL DOCTRINAL LEGAL RESEARCH RESEARCH 1. Statutory materials. 2. Reports of committees.
3. Legal History.
4. Judgments, Case Case Reports and Case Digests. Digests.
5. Standard Textbooks and reference books.
6. Legal Periodicals.
7. Commentaries.
8. Govt. Reports.
9. Parliamentary & Debates. 10. Resources.
10. Ibid Page 10 of 29
MERITS OF DOCTRINAL RESEARCH:
11
1. In a doctrinal Research, the researcher is always engaged
in research work, analysis of case laws and judicial pronouncements etc. unlike that in case of non-doctrinal research. Also, doctrinal research is less time consuming.
2. It provides the lawyers, judges and others with the
instruments needed to reach a legal decision.
3. Doctrinal legal Research helps in continuity, consistency
and certainty of law. Such a research contributes in our understanding of law, legal concepts, legal doctrines etc.
4. Such a Research provides quick answers to the legal
problems.
5. Such a Research helps in pointing out the inbuilt loopholes,
gaps, ambiguities or or inconsistencies inconsistencies in the substantive substantive law. 11.Ibid Page 11 of 29
6. Doctrinal Research always helps informing a strong and
solid basis for the non-doctrinal research.
7. Doct Doctri rina nall Researcher systemizes system izes the legal propositions proposi tions that are a result of his rational reasoning and critical analysis. In this process he may initiate a new Theory in the concerned field of law. 8. Doctrinal Research helps in predicting how the legal principles, concepts or doctrines would proceed in future.
Page 12 of 29
DEMERITS OF DOCTRINAL RESEARCH
12
1. Doctrinal legal research is basically the result of individual
analysis of a researcher and the perception of a legal fact of one researcher may vary from another researcher. However, each of these perceptions is equally convincing and logical. Thus, doctrinal legal research is subjective in nature.
2. In the recent past where there has been an economic,
political and social change, more emphasis is given on the people and institution regulated by law. Law has been attributed with the role of social engineering. There are a number of facts which lie outside the legal system which may be responsible for non-implementation or poor implementation of a given piece of legislation. But, doctrinal legal research do not look into these factors. Doctrinal Research does not go beyond the sphere of law.
12.Ibid Page 13 of 29
3. In many cases it is seen that there is a gap between the
actual social behavior and the behavior demanded by the legal norm. Doctrinal Research does not address these gaps.
4. Doctrinal legal researcher puts emphasis on traditional
sources of law and judicial pronouncements of appellate courts.
The
actual
practice
of
lower
courts
and
administrative agencies with judicial and quasi-judicial functions remain unexplored because their judgments are not reported.
5. In case of a doctrinal research, the researcher looks into
statutory materials, judicial pronouncements, case reports and principles or doctrines relating to it in order to deduce legal propositions. His inquiry into law however does not get support from social facts or values. As A s a result, these kinds of researches become merely theoretical and far away from social reality. Such a research is incomplete and inadequate.
Page 14 of 29
NON-DOCTRINAL RESEARCH
13
CONCEPT OF NON-DOCTRINAL RESEARCH:
Non-doctrinal research, also known as social-legal research, is research that employs methods taken from other disciplines to generate empirical data that answers research questions. It can be a problem, policy, or a reform of the existing law. A legal non-doctrinal finding can be qualitative or quantitative, and a dogmatic non-doctrinal finding can be part of a large-scale project. The non-doctrinal approach allows the researcher to conduct research that analyses the law from the perspective of other science disciplines, and to employ those disciplines in drafting the law. For example, in the behavioral sciences, there
13.IJTRD6653paper.pdf Page 15 of 29
is a standard form of consumer contract that contributes to the study of psychological phenomena: 1. The tendency of consumers not to read the standard form contract, 2. The inability of consumers to evaluate the terms of the contract correctly once they do read and 3. The ability of sellers to deal with consumers. Because it uses non-sectarian legal experimental data, it provides vital insights about the law in context, i.e. how the law works out in the real world. Legal research is experimental and valuable in detecting and explaining practices and procedures in legal and regulatory systems. It is also valuable in the settling disputes, and impacts the legal phenomena of social institutions and businesses. Similarly, experimental legal research in economics applies legal analysis, statistical inference, and economic Page 16 of 29
modeling, to the core areas of national and international law, such as tort, property, contracts, criminal law, law enforcement and litigation. Earlier research can be used to analyze the economics of legal negligence theory.
Page 17 of 29
ESSENTIAL CHARACTERISTICS OF NONDOCTRINAL RESEARCH:
1. It tries to find out the impact of non-legal events upon the legal decision.14
2. It seeks to identify and appraise the degree of variables influence the outcome and15
3. It tries to find out the effect of each decision on people and society as such legal decision making. The field of empirical research is wider and the availability of authoritative sources are very less which involve several new techniques which are unknown to the research. 16
14.Supra note 6 15.Ibid 16 .Ibid Page 18 of 29
4. This type of research is conducted to assess the impact of non-legal event on legal provisions or law making process. 17 5. Variables which influence the legal process play an important role.18 6. Consequences of any law or principle of law on the society can be traced.19 7. Co-relation between law and other non-legal fact is the outcome of this research. 20
17. Supra note 1 18.Ibid 19.Ibid 20.Ibid Page 19 of 29
21
TOOLS OF NON-DOCTRINAL NON-DOCTRINAL RESEARCH RESEARCH:
1. Meeting. 2. Survey. 3. Schedule. 4. Judgment. 4. Judgment. 5. Participant or non-participant. 6. Sampling. 7. Case study. 8. Posted or unpublished resources.
21.http://www.quora.com/what-is-non-doctrinal-legal-resaerch. Page 20 of 29
MERITS OF NON-DOCTRINAL RESEARCH:
22
1. Non-doctrinal research enhances lawyer’s ability to understand the implications and effects on the society.
2. Legal researches can use social science methodologies themselves to investigate issues, or they can collaborate with skilled researchers from other disciplines.
3. It highlights the gap between legislative goals and social reality and thereby depicts a true picture of law-in-action.
4. It also highlights the gap in relation to the practice of law enforcers, regulators and adjudicators and use or underuse of the law by intended beneficiaries of the law. 22.http://blablawriting.com/doctrinal-and-non-doctrinal-research-essay. Page 21 of 29
5. It highlights the reasons behind making the law ‘symbolic’, less-effective or ineffective.
Page 22 of 29
23
DEMERITS OF NON-DOCTRINAL RESEARCH : 1. Financial support is lacking.
2. Other disciplines had shed away from the study of legal order has been shed away 3. Due to their preoccupation with their profession, the contributions of legal 4. Legal researchers lack a tradition that enables them to strengthen the empirical 5. Lack of training in the use of techniques of this empirical research. Most of the the steps by other other disciplines disciplines academicians are very less research of research such as collection of data, field work, formation of hypothesis, etc. are unknown to the legal
researcher.
23. Supra note 6 Page 23 of 29
6. There is an unfavorable and arrangement attitude towards the empirical research. The use of qualitative measurement techniques are very difficult to understand by legal researchers.
Page 24 of 29
DIFFERENCE
BETWEEN
DOCTRINAL
NON-DOCTRINAL RESEARCH:
AND
24
1. Doctrinal research lays much emphasis upon legal principles but non-doctrinal research lays lesser emphasis upon doctrines. 2. In doctrinal research, researcher uses traditional source for data but non-doctrinal research is not solely dependent on traditional or conventional sources for data. 3. In doctrinal research scholar seeks to answer one or two legal propositions or questions, on the other hand non-doctrinal research involves number of questions and large area.
24. Supra note 1 Page 25 of 29
4. Doctrinal research is a theoretical study but nondoctrinal research involves empirical study. 5. Mostly secondary source are used in doctrinal research and primary data are used in non-doctrinal research. 6. Doctrinal
research
is
concerned
with
legal
propositions; on the other hand non-doctrinal research is more concerned with social values and people.
Page 26 of 29
CONCLUSION In conclusion, I can say that it is easy to target a specific methodology and identify its strengths and weaknesses. However, it must be noted that doctrinal and non-doctrinal legal research are the ultimate way to find the answers that have been raised in the context of attempts to understand the emerging issues in the framework of the law. There is no hierarchy between methodologies and they are all of equal importance for the development and understanding of the law. What is crucial is that researchers must try and equip themselves with the necessary skills to enable them to comfortably meet their research objectives. Undoubtedly, a well-versed scholar will be aware of the advantages and disadvantages of any particular methodology, and will work to obtain the benefits that result from a better quality of work.
Page 27 of 29
Often, the combination of methodologies, i.e. a mixed method using ideological, social, and legal, can work together to achieve a better understanding understanding of the law. Thus, postgraduate scholars would do well to equip themselves by using alternative research methodologies.
Page 28 of 29
BIBLIOGRAPHY BOOKS : 1. Shipra Agarwal; Legal Research Methodology; Allahabad Law th
Agency; 6 Edition 2016 2. Mona Purohit; legal system and research methodology;CLP;3
rd
Edition 2014; Reprint 2015
WEBSITES: 1. www.academia.edu 2. www.quora.com 3. www.lawdessertation.blogspot.in 4. IJTRD6653paper.pdf 5. www.blablawriting.com
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