Legal research methodology is not particularly different from the research methodology used in other disciplines. Nonetheless, it has some special attributes in terms of source materials and ways of approaching the problems. Researchers should be clear as to methodology and reasons for choosing a particular methodology. Effective legal research is hardly possible without a proper understanding of research methodology. A researcher should justify the important methodological choices in his/her work.
There are no single or universal approaches to legal research methodologies. The legal research may be of combination of methods for interpreting and applying legally relevant information. There are several approaches to research methodology, such as analytical, inter-disciplinary, comparative, and historical. A particular type of methodology depends considerably upon the research question formulated and the sources of materials chosen.
Analytical Approach to Legal Research
An analytical method is the most important one and is widely used in legal research. The analysis involves an explanation of the cause and effect of complex phenomena. Analytical skill is crucial for any legal researcher. The analytical approach requires the use of logical reasoning and interpret laws to conclude.
Since laws are by their nature written in abstract and general terms, it is the task of the researchers and judges to apply those general rules to concrete factual circumstances, for which they apply logic and common sense to analyze and interpret the words in the law.
In most cases, the analytical approach deals with one or more legal concepts or legal theories. Analytical research uses interpretive methods to examine cases, statutes, and other forms of law to seek out, construct, or reconstruct rules and principles. An analytical approach is sometimes viewed as doctrinal research.
Doctrinal research of law “provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between the rules, explains areas of difficulty and perhaps, predicts future developments.”
The sources of law have been the primary materials, law doctrines, case law, and legislation. The legal research is largely confined to an analysis of legal doctrine. The salient characteristic of the analytical approach is its emphasis on the autonomy of law as an independent discipline or science. Thus, the analytical approach of legal research can lead to ‘close reasoning.’
The analytical method serves the fundamental object of giving effect to the terms of a legislative instrument. Analytical research is applied to dissect the terms of a provision, draw inferences from them, and apply the conclusions to resolve legal questions.
The most relevant aspects of the analytical approach are: what did the law-maker intend to achieve with the legislation under consideration? What is the underlying policy rationale of a piece of legislation?
In essence, it involves applying critical judgment and developing one’s own view of the situation. In the analytical approach, the researcher should highlight the positive aspect of the law, e.g., what a legal situation is and its normative aspect, e.g., what a legal situation should be. Thus, it not only describes facts and circumstances but also defines parameters and interprets the facts.
The normative analysis is concerned with the rational criticism and evaluation of legal doctrines and rules. On the other hand, the positivistic approach holds that the conception of law is a coherent and complete system. Such judicial interpretation and process should only be a logical application of existing rules of law.
Interdisciplinary Approach to Legal Research
It implies a concerted effort to integrate disciplinary insights and apply the integrated insight to the study of problems. The interdisciplinary approach of legal research advances the proposition that legal research ought not to content itself with the strictly legal but should also explore the interface between law and the other disciplines.
It integrates different disciplines such as history, political science, economics and philosophy, and even different methodologies. The interdisciplinary approach is distinguished from a multidisciplinary approach, which juxtaposes several disciplines without any attempt to integrate or synthesize aspects of their knowledge and perspectives.
The interdisciplinary approach requires looking at various aspects of the subject and viewing it from more than one perspective. The interdisciplinary approach suggests the accommodation of sociology of law, economics and law, and law and technology within a single discourse to integrate and establish communicative links between disciplines.
The objective of interdisciplinary research is to combine knowledge, skills, and forms of research experience from two or several disciplines to transcend some of the theoretical and methodological limitations of the discipline in question and create a basis for developing a new form of analysis.
This is evident from integration because legal researchers and lawyers need to look at the law from a much broader angle than has been done previously. Inter-disciplinary research is “research designed to secure a deeper understanding of law as a social phenomenon, including research for the historical, philosophical, linguistic, economic, social or political implications of the law.”
On the other hand, it also seeks to evaluate the influence of other disciplines on legal scholarship. An interdisciplinary approach is often about producing results that are relevant to more than one discipline.
This interrelationship of disciplines is often reflected because many reputed law schools have designed their curriculum to include other subjects to explain a particular problem coherently and logically. The interdisciplinary approach also suggests that methodologies and information of social science are integrated into legal discourse.
The interdisciplinary approach as the interface of law and social science dates back to the Realist movement in the 1930s and 1940s. That movement was keen to highlight the differences between ‘law in the books’ and ‘law in action.’
Socio-legal Approach to Legal Research
A sociological approach to law is one of the most characteristic features of modem jurisprudence—the socio-legal approach views law as a means of social control and change.
According to this approach, the law is essentially a social phenomenon. According to one author, The sociology of law seeks to explain the nature o law in terms of the empirical conditions within which doctrines and institutions exist in particular societies or social conditions.
Socio-legal research uses the theories and methods of social science to explore the operation of law, legal processes, and legal institutions. The sociological approach tells us that law is a social phenomenon and works in a social setting instead of a textual approach. According to the socio-legal approach, analysis of law is directly linked to the analysis of the social situation to which the law applies and should be put into the perspective of that situation.
It contrasts with the textual or ‘black letter law’ approach, which emphasizes the text’s literal meaning. It calls for going beyond the ‘black letter law’ and investigating the social milieu against which law is enacted and applied.
On the relationship between law and sociology, Roger Cotterrell wrote succinctly: both law and sociology are concerned with the whole range of significant forms of social relationships. And in practice, the criteria determining which relationships are significant are often similar, deriving from the same cultural assumptions or conceptions of policy relevance. Furthermore, both legal and sociological inquiries typically seek to view these phenomena as part of, or potentially part of, an integrated social structure. Thus, law and sociology share a fundamentally similar basic subject matter despite their radical differences in method and outlook. Law is the practical craft of systematic control of social relations and institutions. Sociology is the scientific enterprise that seeks systematic knowledge of them.
The socio-legal approach helps researchers to realize a closer understanding of the policy objectives of any legal rule. The sociological views law as an emanation of social elements and depends not on state authority but social compulsion. The socio-legal research assesses the impact of legal doctrines upon society.
The sociological approach tries to investigate through empirical data how law and legal institutions affect human attitudes and what impact on society they create; assess the suitability of legal institutions to the needs of society.
It aims to understand legal and social phenomena, whereas the main concern of the traditional approach to jurisprudence is to undertake analytical-linguistic studies. Using the law as an instrument of government policy requires understanding the socio-economic context in which law works and what effects are likely to happen. In socio-legal research, the law is considered as one of the social policy tools.
A wide range of strategies is used in socio-legal research ranging from the statistical analysis of the survey to the interview analysis. By using these strategies, and the socio-legal approach addresses the following questions:
- what are the effect of law and the legal order on the social order?
- What is the effect of the social order on the legal order?
- What is the effect of the law on attitude, behavior, institutions, and organizations in society, maintenance, and change of society?
- What is the effect of attitudes, maintenance, behavior, institutions, and organizations in society, maintenance, and change of society on the law?
Comparative Approach to Legal Research
Each legal system has its own history, its own fundamental principles and procedures, and its own forms of publication legal sources. But in this globalized and interdependent world-the study of the law of the other countries is assuming greater significance.
The law of foreign countries is increasingly becoming relevant in national court proceedings involving international transactions. Inter-action between various legal systems is sometimes described as a transnational legal system. The comparative method is advantageous to understand the transnational legal system.
Comparative approach as a study of legal systems by comp comparison has assumed wider significance due to the ongoing globalization process. With the growth of international and regional legal orders, an understanding of the forms and methods of comparative legal study has become essential to all those wishing to understand and engage in current legal debates.”
The comparative method offers how the differences between the law of diverse countries and systems are analyzed. Even one needs a comparative method to understand the law within one’s own country. In this way, a comparative study is appreciated for its benefit to the national legal system.
The comparative method aims to harmonize but not to unify the world’s different laws and legal cultures. But undoubtedly, comparative study helps to harmonize the laws of different countries. Because often, the comparative approach may involve comparison about two or more national legal systems.
In this sense, it has an international dimension. The comparative approach takes the insider’s view on the legal systems studied, helps to understand the institutional structure of concepts, thinking, and organizations of the systems in question.
The comparative method denotes not only that there are different ways of addressing the same issue but also is to find differences. The comparison may give a fuller view of the subject under investigation.
However, the objective of the comparative method is not to draw mere similarities and dissimilarities. Rather, it can enable a researcher to suggest a suitable solution to the legal problems in light of a set of rules that are ideal for a given society. The comparative method may confer the following advantages:
First, comparative research can throw doubts on the usefulness or strongly entrenched views; secondly, it may suggest a suitable solution to legal problems; thirdly, a comparative study tends to aid in assembling which principles, applicable in the field concerned, are fundamental and which are secondary.
Historical Approach to Legal Research
The historical approach looks at the evolution and development of a particular system of rules to provide useful contextual background and a fuller understanding of a certain legal discipline both for the researcher and the ultimate reader. A historical approach “examines the relations between law and events, showing how the law has been used at different times for different purposes, how it connects with interests and classes, with political ends and social movements.”
The historical approach helps us understand how a particular institution or law evolved and why they need a change in the present context. It takes the view that history has a significant role in explaining the current state of law and its past development and likely future direction.
For example, to understand the institutional and jurisdictional aspects of the United Nations, a brief look at the whole concept and history of collective security and that of the League of Nations could be of some help.
For example, research on the historical development of the criminal justice system in Bangladesh requires understanding the sequence of historical events or legislative development from the pre-colonial period in the Sub-continent.
The historical approach takes us from past to future. The historical approach serves to understand the present situation and shows the general trend of changes in-laws. As the present can not be properly understood without some knowledge about the past, the foremost purpose of the historical approach is to gain a clear perspective of the present.
But historical research can aim at the simply scholarly desire of the researcher to arrive at an accurate account of the past. The sources of the historical approach include parliamentary debates on any legislative scheme, official reports of inquiry, case reports, newspaper reports, and journals. But the researcher should be careful about the authenticity and integrity of the documents.
In Evaluating documents, the researcher should try to determine their completeness by verifying whether there have been additions or deletions for the original text. The researcher should also maintain objectivity in interpreting historical events and show an adequate historical perspective of the issue under research. For this purpose, primary sources or historical documents should be used as extensively as possible.
There is “no set legal methodology” that is applicable in all cases. It is not always possible to make clear-cut distinctions among the above ways of approaching the methodology.
A research paper that is concerned essentially with examining a subject may also involve comparison. The researcher can choose a method that is best suited to questions and available sources. It depends upon the nature of the research question.