Legal Research Methodology, Lecture notes of Law

Download Legal Research Methodology and more Lecture notes Law in PDF only on Docsity! Kasim Balarabe LLB (ABU), BL (Nigeria), LLM (Geneva), LLM (VU Amsterdam), Dip. RL (Italy) PHD Researcher (Maastricht, Netherlands) Barrister and Solicitor of the Supreme Court of Nigeria LEGAL RESEARCH METHODOLOGY 1 TOPIC ONE Content of the Presentation GENERAL INTRODUCTION  Definition of Research  Definition of Legal Research  Objectives of Research  Motivation in Research  Research Method and Research Methodology  Types of Research Methods  Types of Research  Legal Research Models  Research and Scientific Method2 GENERAL INTRODUCTION DEFINITION OF RESEARCH  In simple terms, it is a ‘systematic investigation towards increasing the sum of human knowledge’ and as a ‘process’ of identifying and investigating a ‘fact’ or a ‘problem’ with a view to acquiring an insight into it or finding an apt solution therefor.  Some people consider research as a movement, a movement from the known to the unknown. It is actually a voyage of discovery.  We all possess the vital instinct of inquisitiveness for, when the unknown confronts us, we wonder and our inquisitiveness makes us probe and attain full and fuller understanding of the unknown. 5 GENERAL INTRODUCTION  This inquisitiveness is the mother of all knowledge and the method, which man employs for obtaining the knowledge of whatever the unknown, can be termed as research.  Research is an academic activity which comprises defining and redefining problems, formulating hypothesis or suggested solutions; collecting, organizing and evaluating data; making deductions and reaching conclusions as well as carefully testing the conclusions to determine whether they fit the formulated hypothesis. 6 GENERAL INTRODUCTION DEFINITION OF LEGAL RESEARCH  Legal research may be defined as ‘systematic’ finding of law on a particular point and making advancement in the science of law.  However, the finding of law is not so easy. It involves a systematic search of legal materials, statutory, subsidiary and judicial pronouncements.  For making advancement in the science of law, one needs to go into the ‘underlying principles or reasons of the law’.  These activities warrant a systematic approach. An approach becomes systematic when a researcher follows scientific method. 7 GENERAL INTRODUCTION OBJECTIVES OF RESEARCH  The purpose of research, thus, is to acquire knowledge or to know about ‘something’ in a scientific and systematic way.  Its purpose may, however, be to find solution to the identified problem.  The former is referred to as ‘basic’ or ‘pure’ or ‘fundamental’ research while the latter takes the label of ‘applied’ or ‘action’ research.  Fundamental research is mainly concerned with generalizations and with formulation of a theory (or re- confirmation of the existing theory). 10 GENERAL INTRODUCTION  Its main aim is to acquire knowledge for the sake of acquiring it.  Applied research, on the other hand, aims at finding or discovering solutions or answers to the identified ‘problem(s)’ or ‘question(s)’.  Obviously, every research study has its own goal(s) or objective(s). Nevertheless, ‘research objective’ of a given research study may fall under either of the following broad categories of ‘research objectives’: 1. To gain familiarity with a phenomenon or to achieve new insights into it. 2. To portray accurately the characteristics of a particular individual, situation or a group. 11 GENERAL INTRODUCTION 3. To determine the frequency with which something occurs or with which it is associated. 4. To test causal relationship between two or more than two facts or situations. 5. To ‘know’ and ‘understand’ a phenomenon with a view to formulating the problem precisely. 6. To ‘describe’ accurately a given phenomenon and to test hypotheses about relationships among its different dimensions. 12 GENERAL INTRODUCTION RESEARCH METHODS AND RESEARCH METHODOLOGY  The term ‘research methods’ refers to all those methods and techniques that are used by a researcher in conducting his research.  The term, thus, refers to the methods, techniques or tools employed by a researcher for collecting and processing of data, establishing the relationship between the data and unknown facts, and evaluating the accuracy of the results obtained.  Sometimes, it is used to designate the concepts and procedures employed in the analysis of data, howsoever collected, to arrive at conclusion. 15 GENERAL INTRODUCTION  In other words, ‘research methods’ are the ‘tools and techniques’ in a ‘tool box’ that can be used for collection of data (or for gathering evidence) and analysis thereof.  ‘Research methods’ therefore, can be put into the following three groups: 1. The methods which are concerned with the collection of data [when the data already available are not sufficient to arrive at the required solution]. 2. The statistical techniques [which are used for establishing relationships between the data and the unknowns]. 3. The methods which are used to evaluate the accuracy of the results obtained. 16 GENERAL INTRODUCTION  In the legal field, it is accomplished through special procedures of information gathering, storage and use.  It may include the collection of laws, administrative regulations, court practice and procedures, administrative rulings, treaties etc.  In some cases, it may include fact finding relevant to any episode, circumstance and actual fact situation.  The term ‘research methodology’, on the other hand, refers to a ‘way to systematically solve’ the research problem.  It may be understood as a ‘science of studying how research is done scientifically’. 17 GENERAL INTRODUCTION  A study of research methodology has the following advantages: 1. It inculcates in a researcher the ability to formulate his research problem in an intelligent manner. 2. It inculcates in him objectivity in perceiving his research problem and seeking solutions therefor. 3. It equips him to carry out his research undertaking in an efficient manner and in a better way. 4. It enables him to take rational decisions at every step of his research. 5. It enables him to design appropriate research technique(s) and to use it (them) in an intelligent and efficient manner. 20 GENERAL INTRODUCTION 6. It enhances his ability to analyze and interpret data with reasonable objectivity and confidence. 7. It enhances ability of the researcher and/or others to evaluate research findings objectively and use the research results in a confident way. 8. It entails a good research. 9. It enables him to find a satisfactory way of acquiring new knowledge. . Importance of knowing the methodology of research or how research is done stems from the following considerations: 21 GENERAL INTRODUCTION 1. The knowledge of methodology provides good training specially to the new research worker and enables him to do better research. It helps him to develop disciplined thinking or ‘bent of mind’ to observe the field objectively. 2. Knowledge of how to do research will inculcate the ability to evaluate and use research results with reasonable confidence. 3. When one knows how research is done, then one may have the satisfaction of acquiring a new intellectual tool which can become a way of looking at the world and of judging every day experience. Accordingly, it enables us to make intelligent decisions concerning problems facing us in practical life at different points of time. Thus, the knowledge of research methodology provides tools to look at things objectively. 22 GENERAL INTRODUCTION 2. Doctrinal Research: This means theorizing without considering the practical consequences. It is called a visualized research, imaginative research, unpractical research. . The researcher pays excessive attention to theory as opposed to practice. . Most legal research is of this kind. Legal researcher wade through volumes of books, statutes and cases after which they analyse their findings and make recommendations or suggestions. . This type of method is also called a priori research. 25 GENERAL INTRODUCTION 3. Teleological Research: This is where the researcher uses his experience to arrive at a definite finding. . For example, a retired president, minister or even a director can use his experience acquired during his tenure in office to write a project, article or a book. 26 GENERAL INTRODUCTION TYPES OF RESEARCH  According to C R Kothari, the basic types of research are: 1. Descriptive and Analytical Research; 2. Applied and Fundamental Research; 3. Quantitative and Qualitative Research; and 4. Conceptual and Empirical Research. 27 GENERAL INTRODUCTION  While in fundamental/pure or basic research, the researcher is mainly concerned with generalization and with the formulation of a theory.  He undertakes research only to derive some increased knowledge in a field of his inquiry. He is least bothered about its practical context or utility.  Research studies concerning human behavior carried on with a view to making generalizations about human behavior fall under fundamental or pure research.  But if the research (about human behavior) is carried out with a view to solving a problem (related to human behavior), it falls in the domain of applied or action research. 30 GENERAL INTRODUCTION  The central aim of applied research is to discover a solution for some pressing practical problem, while that of fundamental research is to find additional information about a phenomenon and thereby to add to the existing body of scientific knowledge.  The ‘applied’ scientist is thus working within a set of certain values and norms to which he feels committed.  A sociologist, for example, when working with a social problem to find solution therefor and proposes, through a systematic inquiry, a solution or suggests some measures to ameliorate the problem, his research takes the label of ‘applied’ or ‘action’ research. 31 GENERAL INTRODUCTION  But when he undertakes a study just to find out the ‘what’, ‘how’ of the social problem, his inquiry takes the nomenclature of ‘pure’ or ‘fundamental’ research.  However, the above-mentioned ‘distinguishing factor’ between the ‘applied’ and ‘fundamental’ research need not be conceived as a ‘line’ putting the two ‘across’ the ‘line’ forever or an ‘either-or’ dichotomy.  In fact, they are not mutually exclusive. There is a constant interplay between the two, each contributing to the other in many ways. 32 GENERAL INTRODUCTION  For example, when a researcher is interested in investigating the reasons for, or motives behind, certain human behavior, say why people think or do certain things, or in investing their attitudes towards, or opinions about, a particular subject or institution, say adultery or judiciary, his research becomes qualitative research.  Unlike quantitative research, qualitative research relies on reason behind various aspects of behavior. 35 GENERAL INTRODUCTION 4. Conceptual vs. Empirical Research .Conceptual research is related to some abstract idea(s) or theory. It is generally used by philosophers and thinkers to develop new concepts or to re-interpret the existing ones. .On the other hand, empirical research relies on experience or observation alone, often without due regard for system or theory. It is data-based research, coming up with conclusions that are capable of being verified by observation or experiment. 36 GENERAL INTRODUCTION  It is therefore also known as experimental research.  In empirical research, it is necessary to get facts firsthand, at their source.  In such a research, the researcher must first provide himself with a working hypothesis or guess as to the probable results. He then works to gets enough facts (i.e. data) to prove or disprove his hypothesis. 37 GENERAL INTRODUCTION  In such situations, legal research, inter alia, becomes necessary: 1. for ascertainment of law on a given topic or subject; 2. to highlight ambiguities and inbuilt weaknesses of law; 3. to critically examine legal provisions, principles or doctrines with a view to see consistency, coherence and stability of law and its underlying policy; 4. to undertake social audit of law with a view to highlighting its pre-legislative ‘forces’ and post- legislative ‘impacts’; and 5. to make suggestions for improvements in, and development of, law. 40 GENERAL INTRODUCTION MODELS OF LEGAL RESEARCH  Legal research, like any other research, invariably involves collection and analysis of facts and their interpretation to ascertain or refute existing information or add new information thereto.  Inquiry into a legal fact, thus, either supplements the existing theory/information or supplants it with new one.  However, a 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.  A few prominent paradigms or models of legal research, in brief, along with their utility, are outlined here below: 41 GENERAL INTRODUCTION i. Evolutive and Evaluative . A legal research gets the label of ‘evolutive model of legal research’ when a researcher endeavors to find out how a legal fact, rule, concept, an institution or the legal system itself come to be what it is today. . The researcher attempts to trace the origin and development of a legal fact, [such as rule against self- incrimination or double jeopardy], or a legal institution, [like the institution of an ombudsman or a judicial institution, say the Supreme Court of Uganda]. . Such legal research can also be undertaken even to trace the development of a given law, like the development of constitutional law of a country. 42 GENERAL INTRODUCTION  To be more precise, he seeks to answer the question- which are the parties expected or intended to be benefited by a given rule, concept, institution or the system of law.  Identification of the parties intended to be benefited by a particular law or legal fact help to ascertain the legislative intent or object of that law or legal fact and to seek and clarify the justification for its existence.  It also helps to ascertain the legal framework and strategy employed in it to help the ‘intended’ beneficiaries. It further helps to ascertain whether the intended beneficiaries are actually being benefited or not. 45 GENERAL INTRODUCTION  In a way, an identificatory legal research serves to assess the utility of the law or a legal fact under inquiry.  Such a model of legal research, for example, can be successfully used by undertaking research into the law relating domestic violence, child abuse or harmful traditional practices.  Impact of law studies endeavor to assess effectiveness or actual result of an established or a newly conceived law, legal provision, rule or institution.  Here legal researcher gives emphasis not on contents of the substantive law under inquiry but on its ultimate impact on the society or its legislative target. 46 GENERAL INTRODUCTION  His focus is not merely on the law as is found in the Codes, Statutes, judicial pronouncements and treatises but on its operation or ‘law in action’.  He intends to study and understand the effects of the working of law and legal institutions on the life of the individuals and society at a particular time and place.  The focus of inquiry, thus, is the ‘law in action’ and on the behavioral and attitudinal changes of the people effected by law.  He intends to record and explain how a particular legal fact works within a given social setting. 47 GENERAL INTRODUCTION  Predictive legal studies are 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 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. 50 GENERAL INTRODUCTION iv. Collative . When a legal researcher prepares a digest of laws, statutory provisions, judicial pronouncements or annotated bibliography on a particular topic or subject, that research gets the label of collative legal research. . Here the legal researcher collects all the relevant materials, with or without its summary, on a given topic and arranges/classifies them in a logical manner. . Digests of cases and statutes, like Halsbury’s Statutes of England and Yearly Digests published by well-known law publishers fall in this category of legal research. 51 GENERAL INTRODUCTION v. Historical . In historical legal research, a legal researcher intends to trace historical antecedents of a legal fact. Tracing history of a particular legal fact becomes significant for its following attributes. 1. it becomes useful, rather warranted, when the present statute or statutory provision has raised meaningful queries and it becomes necessary to explore the circumstances in which the present position came out. . In such circumstances, it gives a significant clue to the reasons why it (the particular law or legal provision) was framed in the form in which now it appears. It helps to remove certain doubts about the legal fact. 52 GENERAL INTRODUCTION 6. historical background of law or a statutory provision helps judiciary (particularly in Common Law jurisdictions) in interpreting law in a more rational and pragmatic way as historical research helps it to know the historical and political spirit in which that particular law (or a legal provision) came into existence and for what reasons. Laws are not made in a vacuum. They are passed in order to meet some needs of society. 7. a law may have relevant international background when it is enacted to give effect to the treaty obligations accepted by the government towards other countries. 55 GENERAL INTRODUCTION  The practical importance of an understanding and knowledge of that wider political context is evidenced by the increasing willingness of the courts to take account of relevant international instruments when construing the legislation. vi. Comparative . A comparative legal research carries significance as Legislators imitate each other and try to learn from each other’s experience. . It is undeniable that comparative legal research serves as a good means for introducing new ideas into a legal system. 56 GENERAL INTRODUCTION  The adoption of the Scandinavian institution of the Ombudsman in many Common Law jurisdictions and the adoption in many jurisdictions of consumer protection laws reflecting the American approach are classic examples in point.  In most of these instances law reformers, academic lawyers and Law Commissions have conducted comparative study of foreign systems before initiating a new law or proposing amendments in the existing ones.  Invariably, every good piece of comparative approach to law not only gives useful ideas to Legislature but also suggests suitable solution to legal problems. 57 GENERAL INTRODUCTION  They predict future course of development of law, hinting at the problems that may likely arise in future and suggesting a way out.  Such a research obviously is confined to the discipline of ‘law’, as the researchers, treating law as a closed discipline, need not go beyond the discipline of law or look for material lying beyond ‘law’.  This type of legal research is characterized as ‘mono- disciplinary legal research’ as the discipline involved is only one, i.e. ‘law’.  All doctrinal legal researches obviously fall in this category.60 GENERAL INTRODUCTION  However, mono-disciplinary legal research, in spite of its potentials to contribute in bringing clarity, consistency and certainty in law and initiating reforms in law, has its own limitations.  It is addressed to a limited audience-the members of the profession –judges and lawyers and it is meant to assist them in the discharge of their day-to-day professional tasks.  It does not fully reflect the social dimensions of law. Therefore, the feedback it supplies to the policy- makers is merely partial. 61 GENERAL INTRODUCTION 2. Trans-disciplinary Legal Research . An inquiry into a legal fact transgresses the discipline of ‘law’ and touches upon the disciplines ‘related’ to law. . Such a legal research, to distinguish it from the former one, may be labeled as trans-disciplinary legal research. . Law does not operate in a vacuum. It operates in a complex social setting. It has certain roles to play in a society. Each legal rule, in ultimate analysis, intends to apply and govern a factual situation of life. . All disciplines that are connected with this factual situation of life, therefore, have nexus with ‘law’. 62 GENERAL INTRODUCTION ii. Multi-disciplinary Legal Research . This involves a study of a common problem by scholars of several disciplines, each studying it from his own specialized angle. . For example, scholars of law, sociology, or political science may individually study the issues pertaining to gender equality or an affirmative action. iii. Inter-disciplinary Legal Research . This is a research endeavor undertaken jointly by scholars belonging to different disciplines. . This is the research done by a legal scholar in close association with scholars from other disciplines related with law, such as sociology, anthropology, political science, history, philosophy, psychology, and economics. 65 GENERAL INTRODUCTION  It is a sort of concerted or cooperative effort by several scholars belonging to different disciplines to integrate their disciplinary insights, and to apply integrated insight to the study of legal problems. 66 GENERAL INTRODUCTION RESEARCH AND SCIENTIFIC METHOD  Scientific method implies an objective, logical and systematic method, i.e.:  a method free from personal bias or prejudice;  a method to ascertain demonstrable qualities of a phenomenon capable of being verified;  a method wherein the researcher is guided by the rules of logical reasoning;  a method wherein the investigation proceeds in an orderly manner and a method that implies internal consistency.67