CHAPTER ONE
INTRODUCTION TO LEGAL RESEARCH
You should be familiar with the following areas
- Concept of Research and Legal Research
- Scope and relevance of Legal Research
- Foundation of Legal Research
- Types of Legal Research
- Objectives of Legal Research
- Sources of Legal Research
- Importance (purpose) of Legal method
1.1 CONCEPT LEGAL RESEARCH
1.1.1 Legal Research
Legal researchwould, in a similar vein, involve the collection of legal materials for the purpose of discovering new facts that would contribute to the body of knowledge in a legal field or subject. Legal research is defined by legal studies since it is the materials that are used in legal studies and the topics that are taught and learnt that determine legal research. In a similar light, legal studies are also defined by legal research as the discoveries of legal shape legal studies
Black’s Law Dictionary 7th Edition Defined Legal researchmeans finding and gathering of authorities that bears on the question of Law.
By Chatterrjee on the book known as Methods of Research in Law pg.7 defined legal research as an act of searching (closely and carefully) for or after a specified thing or person
and that search or investigation should be directed to the discovery of some facts by careful consideration or by careful study of a subject.
OR
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.
1.1.3 Forms of Legal Research
There are two main forms of legal Research
(a) Practical Legal Research
A person conducting practical legal research supposed to go to the following categories;
(b) Academic Legal Research
Refers to Research proposal writing followed by report writing after completion of the research. Academic Research Report comes after the completion of the Research Proposal. An academic Legal Research involves the process of finding relevant legal materials in the library, Research fields and any other relevant place. Academic Legal Research also involves learning the skills to use statutes, journals, books and other relevant materials. For example, proper citation of materials.
1.2 NATURE AND SCOPE OF LEGAL RESEARCH
In the common law system, legislature enacts substantive law. Executive wing of a state, drawing authorization from a substantive law, supplements the substantive law in the form of rules, regulations, statutory orders, notifications and byelaws. While courts as and when called upon, interprets the law, and gives finality to it though their judicial prouncements. Courts, particularly higher ones, however, do not only apply, law to the facts and issues brought and agitated before them but also, though their judicial pronouncements, “make law. They are generally, bestowed with wide judicial discretion. They are empowered to determine legality as well as adjudicate finality of law or legal provision. The lower courts are bound by precedent. In the common law system, therefore, the basic assumption is that if there is a judicial decision in the past having facts and legal issues similar to those in the case currently before the court, the outcome of the past case should control the outcome of the present case. Therefore, in the common law system legislature, Executive as well as Judiciary do constitute source of law. A legal researcher, with a view to understanding law on a particular topic or subject, therefore has to locate, appreciate and analyze apt Acts of Parliament, subsidiary legislative instruments, if any, and judicial prouncements. He has to focus his attention on the primary source materials, like Constitution and Statutes (along with statutory instruments) and leading judicial prouncements (the precedents).
1.3 FOUNDATION OF LEGAL RESEARCH
Under this philosophical foundation there are two approaches 16th Century due to industrial problem- French revolution
It is propounded by the following
Their philosophy came after the French Revolution where there was a lot of chaos
They said
If you want to solve the problem, you have to go to that society and live with those people and there, you may write proposal on what the life is conducted.
They said again that;
If you want to prove your problem, you may prove it by measuring, touching measure.
-They talk about OBSERVATION
(You go to the society and observe situation)
They went saying that,
The only way you can solve the problem is by quantitative enquiry and quantitative analysis.
The societies’ problems cannot be solved within short period of time
As the time went on, things change (especially by the 20th Century)
The views of quantitative approach seem to be obsolete or archaic idea
There came other people with QUALITATIVE APPROACH it was also called as CONSTRUCTIVIST OR INTERPRETIVE APPROACH
Their views became popular and prominent. One of their propounder (s) is Maxweber.
They said;
“If you want to know the problem of the people you can go interview the people
The idea of idealist philosopher was propounded by
These people had two views/ approaches
Real knowledge is also known as “Episteme”
Sense knowledge is also known as “Doxa” or “Hearsay”
They said that, the rela knowledge does not orginate from the external word.
-It is the knowledge one gets from intuition
The Real knowledge is the result of wisdom and is the one which is called “TRUE KNOWLEDGE”
-According to these people, they said.
You may experience things different from what you believe.
They said;
-The method of research is though interview
They cemented by saying that;
“one can search of knowledge or truth though an interview”
1.4 TYPES OF LEGAL RESEARCH
Legal research may be divided into two streams-
1.4.1 Doctrinal Legal Research
Is conceived in the legal research domain, is research about what the prevailing state of legal doctrine, legal rule, or legal principle is. A Legal scholar undertaking doctrinal legal research, therefore takes one or more legal propositions, principles, rules or doctrines as a starting point and focus of his study. Therefore doctrine legal research involves
We shall see in details.
1.4.2 Non-doctrinal Legal Research
In non doctrinal legal research, the researcher tries to investigate though emperial data how law and legal institutions affect or mould human attitudes and what impact on society they create. He endeavors to look into ‘social face or dimension’ of law and gap if any, between legal idealism and social reality. Non-doctritinal legal research thus involves study of ‘social impact impact of law (existing or proposed) or of social auditing of law. The researcher tries primarily to seek, among other things answers to:-
1.5 OBJECTIVES OF LEGAL RESEARCH
1.6 SOURCES OF LEGAL RESEARCH
1.6.1 Primary Sources
Primary authorities are the rules of law that are binding upon the courts, government, and individuals, Examples: constitutions, statutes, regulations, treaties, courts orders, administrative regulations, policy material
1.6.2 Persuasive Primary Authority
Commentaries on the law that do not have binding effect but aid in explaining what the law is or should be. Examples: primary authority, which is not binding on the courts, opinion of the judges, attorney General, law minister, ministry of parliamentary affairs, primary authorities from foreign jurisdiction.
1.6.3 Secondary Sources
Commentaries on the law journals or periodicals, articles, textbooks, legal encyclopedia, legal dictionary, annotations, legal opinions, surveys, legislative history
Secondary sources are important in legal research because they point the researcher to primary sources of law.
1.7. IMPORTANCE (PURPOSE) OF LEGAL RESEARCH
1.7.1 Ascertainment of Law
The systematic effort is require to ascertain or find law on a given subject/topic. He requires not only to locate and to look into relevant Act(s) of Parliament but also to relevant secondary legislative instruments in the form of rules, regulations, orders directions, notifications and by laws and judicial pronouncements thereon. It is a matter of common experience that these legislative instruments are scattered and not easily traceable. More than one Acts may have bearing on the topic under study. He, therefore, needs to be more careful in locating these laws. Most of the subsidiary legislative instruments are not published on time in Official Gazette. Most of the subsidiary legislative instruments are not published on time in Official Gazette. Most of the times they are published after they have come into force. A plethora of judicial pronouncements of different higher judicial institutions including the apex court adds to the difficulty in ascertainment of law. He needs to locate, analyze and digest these judicial pronouncements. Finding law on a particular topic or subject, thus, is not a simple task, as it seems to be. It involves intensive analysis of legal instruments and judicial pronouncements. Further, there is a constant stream of statutes (with often amendments) statutory rules, directives and orders, and judicial decisions flowing at a tremendous speed in a modern welfare State.
1.7.2 Highlighting in Built Gaps and Ambiguities
No legal language or phrase, howsoever a legal drafter may be vigilant, visionary and skilled craftsman can be perfect and be capable to take forever into its ambit all the future contingencies and circumstances. Sometimes, a provision may not, in terms of its phraseology or pragmatic operation, aptly fit into overall legislative intent of the Act or match with its other provisions or provisions of other Acts. A legal researcher, though systematic analysis, may be able to highlight these ‘gaps’ and inbuilt weaknesses of the Act or its provisions.
1.7.3 Determining Consistency, Coherence and Stability of Law
A legal researcher, though 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.
1.7.4 Social Auditing of Law
Legal research is also necessary for taking pre-legislative social audit of law as it helps to understand and appreciate the social forces that played significant role in the making of given law in its present form. Such understanding enables us to know the social stakes that law intends to protect or change and reasons therefore. It helps to appreciate underpinning of the given law and its legislative target and strategy. While post-legislation social auditing helps us to identify gap(s); if any between the legal ideal and the social reality and to know reasons or factors responsible thereof. Such an audit helps us to find as to whether a given law is assimilated in the society and is (or is not) serving the needs of the society. It also unravels the reasons or factors that are responsible for making a given law a mere symbolic or a failure in attaining its intended legislative goal (s). It also enables us to predict future of the law.
1.7.5 Suggesting Reforms in Law
In the light of underlying legislative policy of a Statute and the highlighted inbuilt weaknesses or inconsistencies thereof, a legal researcher can easily offer concrete suggestions or proposals for reform or improvement in the given law. By undertaking analytical, historical and comparative research, he can also formulate his proposals for reform in precise terms. Analytical research, as stated above, is concerned with the ascertainment of law. It deals with present. Historical research, on the other hand, deals with the past and it involves an inquiry into historical antecedents and evolution of law. The past often explains the presents, most vividly. It reveals different alternative legislative measures, other than the current ones, thought of when the law was in the making. It discloses the reasons for their rejection and for adoption of the present ones. Historical Research often shows a particular existing legal provision, rule or doctrine, fully justifiable because the reasons or circumstances that justified the original inclusion of that provision, rule or doctrine are no longer valid or exist. While comparative research aims at finding parallels from other jurisdictions. �{L�h#