DOCTRINAL OR NON-EMPIRICAL RESEARCH :
A 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. Doctrinal research
involves analysis of case law, arranging, ordering and systematizing legal propositions
and study of 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. The original sources of law have achieved this. Under this category
of legislation, the Acts of Parliament and the Acts passed by the legislature fall under
the category of precedents, the case laws decided by the Supreme Court and the High
Courts which are binding on lower courts.
The secondary sources do not posses as much authority as the original sources
possess, like text books on law, commentaries etc. Hence quality of doctrinal research
depends upon the source material on which the researcher depends upon for his study.
The doctrinal legal research by a first hand study of authoritative sources, attempts to
verify the hypothesis. As the major portion of his 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.
The doctrinal legal research has the following characteristics :
1. Propositions are the main base of the studies.
2. The reports of Appellate Courts and conventional legal theory are the
sources of data for a doctrinal researcher.
3. It is concerned with the particular doctrine of law says and not as what
made the authority to so or what has been the impact of that say.
(i) Defects of doctrinal research :
1. Appellate court decisions are overemphasized.
2. To distinguish clearly whether and when he intends to describe past legal behavior
or to predict future legal behaviour to prescribe future legal behaviour, show the
inefficiency of the researcher. The reason for this defect is the lack of basic
conception of legal research.
Despite of all these defects, the doctrinal legal materials contain a lot of
information to be used by the researcher.
A brief survey of the statutory provisions leads to one inescapable conclusion. In
modern times, case law based research is concerned to a very large extent with
considerations of social value, social policy and the social utility of law and any legal
proposition. It is naïve to think that the task of a doctrinal researcher is merely
mechanical – a simple application of a clear precedent or statutory provision to the
problem in hand, or dry deductive logic to solve a new problem. He may look for his
value premises in the statutory; provisions, cases, history in his own rationality and
meaning of justice. He knows that there are several alternative solutions to a problem
(even this applies to a lawyer who is arguing a case before a court or an administrative
authority) and that he has to adopt one which achieves the best interests of the society.
The judges always unconsciously or without admitting think of the social utility of their
decisions, but cases are also not infrequent when the Indian Supreme Court has
consciously and deliberately incorporated social values in the process of its reasoning.
From where does a doctrinal researcher get his social policy, social facts and
social values? The answer is; his own experience, observation, reflection and study of
what others have done before him in a similar or same kind of situation. However, it will
certainly add value to his research if he gets an opportunity to test his ideas by
sociological data. And this is what the author understands by the sociology of law. In
other words, the sociology of law tries to investigate through empirical data how law and
legal institutions affect human attitudes and what impact on society they create. It
seeks answers to such questions as – we are law and legal institutions serving the
needs of the society; Are they suited to the society in which they are operating? What
factors influence the decisions of adjudicators (courts or administrative agencies)? Are
the laws properly administered and enforced (or do they exist only in text books)? The
sociology of law also concerns itself with the identification and creating an awareness of
the new problems which need to be tacked through law. Through sociology of law may
have great potentialities, yet a few caveats must be entered here. Firstly, sociological
research is extremely time consuming and costly. It has been stated: “socio-legal
research is more expensive, it calls for additional training; and it entails great
commitments of time and energy to product meaningful results, either for policy makers
or theory builders”. The decisions in human affairs, however, cannot await the findings
of such studies and must constantly be made, and herein comes the value and utility of
doctrinal research.
Secondly, law sociology research needs a strong base of doctrinal research.
Upendra Baxi rightly points out that “law society research cannot thrive on a weak
infrastructure base of doctrinal type analyses of the authoritative legal materials”. The
reason is simple. The primary objectives of the sociology of law are to reveal, by
empirical research, how law and legal institutions operate in society, to improve the
contents of law, both in substantive and procedural aspects, to improve the structure
and functioning of legal institutions whether engaged in law administration, law
enforcement, or settlement of disputes )adjudicatory process), and these objectives
cannot be achieved unless the researcher has in-depth knowledge of legal doctrines,
case law and legal institutions. Further, such a knowledge is essential for identifying
issues, delimiting areas, keeping the goals in view, and determining the hypotheses on
which to proceed. In the absence of these, the sociological research will be like a boat
without a rudder and a compass, left in the open sea.
Thirdly, sociological research may help in building general theories, but it seems
inadequate where the problems are to be solved and the law is to be developed from
case to case. For instance, as a matter of general theory it is axiomatic that
governmental powers need to be checked as “power corrupts and absolute power
corrupts absolutely”, but too much check may result in governmental ineffectiveness.
This necessitates that when a case comes before a court in which abuse of power by
the executive is alleged, pragmatic considerations ought to control the decision-making.
Fourthly, the function of law in society is not only to follow or adapt itself to public
opinion (assuming that is possible to know correct public opinion) but also to give a lead
and mould public opinion. When the law should follow one course or the other may not
always be answered on the basis of sociological data but on the basis of one’s maturity
of judgment, intuition, and experience, through sociological research may be some
informational value to the decision-maker.
Fifthly, on account of complicated settings (and this particularly applies to
economic data) and variable factors, we may again be thrown back to our own pre-
conceived ideas, prejudices and feelings in furnishing solutions to certain problems. For
instance, there has been the perennial problem of governmental control of business or
non-governmental powers, private enterprise or public enterprise (or efficiency or
inefficiency of the one or the other), and individual liberty or governmental powers,. We
may not be able to answer these questions basic to any society through scientific study.
Even if one were to attempt such a study, it would require such huge resources (owing
to vastness of the subjects of inquiry) that one may not be able to have them at one’s
command.
Sixthly, though law sociology research is of recent origin, yet it is common
knowledge that even in the US, where this kind of work has been done mostly, such
researcher have yet to show their potentiality in terms of translating the findings into
legal propositions and norms. Amongst other, one reason may have been the failure to
select subjects with such potentialities. Any information has some value, but when huge
resources are to be staked in collecting sociological data it may be better to use them
on carefully planned subjects where the research may lead to ultimate improvement of
the contents of the law.
Finally, a word may be said about research methods in collecting empirical data.
It has been said : “In terms of gross division, there are only three methods of obtaining
data in social research: one can ask people questions; one can observe the behavior of
persons, groups or organizations, and their products or outcomes; or one can utilize
existing records or data already gathered for purposes other than one’s own research.
The author is not trained in scientific methods of collecting data the whatever little is
said on common knowledge. A socio legal researcher can get much valuable
information by his own observation and by studying existing records, (here the problem
lies in getting access to the records, since the government is extremely chary of
permitting anyone to see its records), but a note of warning may be sounded against the
method of collecting data by interview. Two broad types of data collected through
personal interviews are factual information and opinions and views about a particular
matter.
A 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. Doctrinal research
involves analysis of case law, arranging, ordering and systematizing legal propositions
and study of 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. The original sources of law have achieved this. Under this category
of legislation, the Acts of Parliament and the Acts passed by the legislature fall under
the category of precedents, the case laws decided by the Supreme Court and the High
Courts which are binding on lower courts.
The secondary sources do not posses as much authority as the original sources
possess, like text books on law, commentaries etc. Hence quality of doctrinal research
depends upon the source material on which the researcher depends upon for his study.
The doctrinal legal research by a first hand study of authoritative sources, attempts to
verify the hypothesis. As the major portion of his 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.
The doctrinal legal research has the following characteristics :
1. Propositions are the main base of the studies.
2. The reports of Appellate Courts and conventional legal theory are the
sources of data for a doctrinal researcher.
3. It is concerned with the particular doctrine of law says and not as what
made the authority to so or what has been the impact of that say.
(i) Defects of doctrinal research :
1. Appellate court decisions are overemphasized.
2. To distinguish clearly whether and when he intends to describe past legal behavior
or to predict future legal behaviour to prescribe future legal behaviour, show the
inefficiency of the researcher. The reason for this defect is the lack of basic
conception of legal research.
Despite of all these defects, the doctrinal legal materials contain a lot of
information to be used by the researcher.
A brief survey of the statutory provisions leads to one inescapable conclusion. In
modern times, case law based research is concerned to a very large extent with
considerations of social value, social policy and the social utility of law and any legal
proposition. It is naïve to think that the task of a doctrinal researcher is merely
mechanical – a simple application of a clear precedent or statutory provision to the
problem in hand, or dry deductive logic to solve a new problem. He may look for his
value premises in the statutory; provisions, cases, history in his own rationality and
meaning of justice. He knows that there are several alternative solutions to a problem
(even this applies to a lawyer who is arguing a case before a court or an administrative
authority) and that he has to adopt one which achieves the best interests of the society.
The judges always unconsciously or without admitting think of the social utility of their
decisions, but cases are also not infrequent when the Indian Supreme Court has
consciously and deliberately incorporated social values in the process of its reasoning.
From where does a doctrinal researcher get his social policy, social facts and
social values? The answer is; his own experience, observation, reflection and study of
what others have done before him in a similar or same kind of situation. However, it will
certainly add value to his research if he gets an opportunity to test his ideas by
sociological data. And this is what the author understands by the sociology of law. In
other words, the sociology of law tries to investigate through empirical data how law and
legal institutions affect human attitudes and what impact on society they create. It
seeks answers to such questions as – we are law and legal institutions serving the
needs of the society; Are they suited to the society in which they are operating? What
factors influence the decisions of adjudicators (courts or administrative agencies)? Are
the laws properly administered and enforced (or do they exist only in text books)? The
sociology of law also concerns itself with the identification and creating an awareness of
the new problems which need to be tacked through law. Through sociology of law may
have great potentialities, yet a few caveats must be entered here. Firstly, sociological
research is extremely time consuming and costly. It has been stated: “socio-legal
research is more expensive, it calls for additional training; and it entails great
commitments of time and energy to product meaningful results, either for policy makers
or theory builders”. The decisions in human affairs, however, cannot await the findings
of such studies and must constantly be made, and herein comes the value and utility of
doctrinal research.
Secondly, law sociology research needs a strong base of doctrinal research.
Upendra Baxi rightly points out that “law society research cannot thrive on a weak
infrastructure base of doctrinal type analyses of the authoritative legal materials”. The
reason is simple. The primary objectives of the sociology of law are to reveal, by
empirical research, how law and legal institutions operate in society, to improve the
contents of law, both in substantive and procedural aspects, to improve the structure
and functioning of legal institutions whether engaged in law administration, law
enforcement, or settlement of disputes )adjudicatory process), and these objectives
cannot be achieved unless the researcher has in-depth knowledge of legal doctrines,
case law and legal institutions. Further, such a knowledge is essential for identifying
issues, delimiting areas, keeping the goals in view, and determining the hypotheses on
which to proceed. In the absence of these, the sociological research will be like a boat
without a rudder and a compass, left in the open sea.
Thirdly, sociological research may help in building general theories, but it seems
inadequate where the problems are to be solved and the law is to be developed from
case to case. For instance, as a matter of general theory it is axiomatic that
governmental powers need to be checked as “power corrupts and absolute power
corrupts absolutely”, but too much check may result in governmental ineffectiveness.
This necessitates that when a case comes before a court in which abuse of power by
the executive is alleged, pragmatic considerations ought to control the decision-making.
Fourthly, the function of law in society is not only to follow or adapt itself to public
opinion (assuming that is possible to know correct public opinion) but also to give a lead
and mould public opinion. When the law should follow one course or the other may not
always be answered on the basis of sociological data but on the basis of one’s maturity
of judgment, intuition, and experience, through sociological research may be some
informational value to the decision-maker.
Fifthly, on account of complicated settings (and this particularly applies to
economic data) and variable factors, we may again be thrown back to our own pre-
conceived ideas, prejudices and feelings in furnishing solutions to certain problems. For
instance, there has been the perennial problem of governmental control of business or
non-governmental powers, private enterprise or public enterprise (or efficiency or
inefficiency of the one or the other), and individual liberty or governmental powers,. We
may not be able to answer these questions basic to any society through scientific study.
Even if one were to attempt such a study, it would require such huge resources (owing
to vastness of the subjects of inquiry) that one may not be able to have them at one’s
command.
Sixthly, though law sociology research is of recent origin, yet it is common
knowledge that even in the US, where this kind of work has been done mostly, such
researcher have yet to show their potentiality in terms of translating the findings into
legal propositions and norms. Amongst other, one reason may have been the failure to
select subjects with such potentialities. Any information has some value, but when huge
resources are to be staked in collecting sociological data it may be better to use them
on carefully planned subjects where the research may lead to ultimate improvement of
the contents of the law.
Finally, a word may be said about research methods in collecting empirical data.
It has been said : “In terms of gross division, there are only three methods of obtaining
data in social research: one can ask people questions; one can observe the behavior of
persons, groups or organizations, and their products or outcomes; or one can utilize
existing records or data already gathered for purposes other than one’s own research.
The author is not trained in scientific methods of collecting data the whatever little is
said on common knowledge. A socio legal researcher can get much valuable
information by his own observation and by studying existing records, (here the problem
lies in getting access to the records, since the government is extremely chary of
permitting anyone to see its records), but a note of warning may be sounded against the
method of collecting data by interview. Two broad types of data collected through
personal interviews are factual information and opinions and views about a particular
matter.
