INTRODUCTION:

“Research is formalized curiosity. It is poking and prying with a purpose.”

-- Zora Neale Hurston¹

Research means repeated search for something, to find out some different new things or something special knowledge in the existing facts. Legal research is any systematic study or research of legal theories, concept, doctrine, cases, principles, rules and regulations etc. methodology, in the sense of O+M+V i.e. way/method/approach and verified facts. Simply, method is the way of doing something and Methodology is the science or study of a particular subject.

The main objectives of legal research are to ascertain the nature, purpose and policy – objectives of legal rules and principles that govern a specific situation and determine their current relevance, utility, adequacy or efficacy.

To examine legal principles and precedents as established by courts, tribunals or other authorities having power to decide issues and disputes, with a view to determine their scope of application. To identify the weakness of an existing law or highlight issues that are not covered or partially covered and examine whether and to what extent a new law or modifications in the existing law would remedy the situation and identify the advantages or disadvantages of certain aspects of law or legal provisions. Even to discover new facts, or verify old facts or extend knowledge, or develop a theory, or arrive at a general conclusion and make a general statement. To explain , interpret or evaluate ideas or principles, such as those contained in an authoritative work or theory with a view to providing further knowledge or explaining its aim, usefulness, values, relevance, correctness or validity. To study some social problem, issue or question and examine how law deals with it, or how best law can be changed and reformed to deal with a situation.

There are different methods of research that may be applicable in legal research. Usually legal research is divided into doctrine and non –doctrinal research. In a research work, research may combination of both the type. When a research is concerned with some legal problem, issue or question, it is referred to as doctrinal, theoretical or pure legal research. When legal research also involves a study of some aspect of society or social problem, issues or question, it is sometime termed as socio-legal research.

Doctrinal research which is sometimes also referred to as armchair research², which is essential for a library base study as the material needed by a researcher may be available in libraries, archives and other data bases. Doctrinal research is a research of legal preposition by way of analyzing of the existing statutory provision along with the present case laws by applying the reasoning power of researcher. In doctrinal research, researcher mainly uses different judgments, treaties, statutes texts, legal journals, magazines etc., and from these he tries to collect all relevant material on the topic and then with reasoning power, researcher tries to find out gap, problem and draws out final conclusion. Dr. S.N. Jain observed that doctrinal research involver’s analysis of case law is arranging, ordering and systematizing legal preposition and study of legal institution through legal reasoning or rational deduction.³

Simply, empirical research means relying solely an observation and experiment, not on theory. Empirical legal research is also termed as Non-Doctrinal legal research; even empirical technique is also called as fact research. Empirical research is nothing but a methodology of research, where researcher tries to collect knowledge or information from first hand study or primary data related to his particular matter or topic and after analysis and interpretation of those information he draws out the conclusion of that research work. Laws or legal provisions are nothing but the result of problem of the society to eradicate that particular one. A researcher, through his research work tries to find out the actual relation between a particular legal provision and its impact on society or any gap of those legal principles in the society, etc. That means, there should be minimum two variables, viz., any legal principle and society or any set of other field, e.g., economics, technology, political etc., then that research methodology will be termed as socio-legal research in wider sense and even when collection of data is in a manner of empirical than it will be empirical legal research. Whether research is empirical or doctrinal, it can be traced out only by pointing the method of collection of data or information.

Doctrinal research is a theoretical study where mostly secondary source of data are used to seek to answer one or two legal propositions or questions or doctrines. Its scope is very narrow and there is no such need of field work. But non-doctrinal research lays lesser emphasis upon doctrines and it is not solely dependent on the traditional or conventional sources for data. Non-doctrinal or empirical research is more concerned with social values and people and thus, primary data are used in this type of research. Here field work is the most important part. Thus, scope is wider. Empirical research tries to find out the effect of legal decisions.

Originally the term “empirical” was used by an ancient Greek practitioner of medicine with his ethics that empiricism referred to a theory of knowledge in philosophy which adheres to the principle that knowledge arises from experience and evidence refers to the gathering specifically using the senses. In scientific use the term empirical refers to the gathering of data using only evidence that is observable by the senses. Early philosopher described as empirical research is the process where a conclusion is totally depends on observable data to formulate and test theories with reasonable sense.

Before the World War-II doctrinal research methodology was more familiar and acceptable among the research scholars. But with the advent of realistic school of jurisprudence, empirical methodology was accepted as basis of legal analysis, because the theory behind the realistic school was that law should be mould always on the basis of present society’s needs and circumstances. The main genesis of doctrinal research was to study judgments or legal provisions or only concentrate upon the existing principle or particular case study. But, empirical research could take society in its preview to find out the actual drawback or originality. And thus, slowly this methodology became more familiar and acceptable by the research scholars. Government also started to encourage this research methodology by aiding more funds for the research work which ultimately raise the income of universities. And thus empirical research methodology became more popular. When students of other subjects started their research with the variable of legal principle along with their own area as a variable, which showed how the empirical research started to gain its momentum. Due to this cross fertilization of research world enhanced the ambit of the legal study at large. Law is nothing but of the society, by the society and for the society.

Law is an integral part of the social process. It aims to organizing society in a systematic and peaceful or orderly manner. So, the tool of research will have to be altered to cope up with the present problems, or come up with various measures to root-out the different social evils. And, thus, empirical legal research is one of the best tools for this purpose. The kind of research seeks to study the impact of legal principles upon non-legal event, which may be social, political, economic, technological, and scientific, cyber-world etc. The scope of Empirical research is much broader than doctrinal research, and its basis source of knowledge are primary data or first-hand information due to which authenticity is more. Through this research, it can easy to trace out the actual consequences of any legal principles on the society or co-relation between law and other non legal fact.

Empirical research methods are a class of research method in which researcher through the field surveys, collect observations or data in order to answer particular research questions or to clarify his hypothesis. Like every coin has both head and tail, this empirical research methodology has both positive and negative aspects. Legal principles or doctrines are for the society at large or a part on a particular geographical area for the welfare as a basic Moto. This is to study the actual relation between legal doctrine as on variable and any other non-legal phenomenon as other variable and to seek the knowledge. Empirical research methodology will help to smoothen the research purpose. But, there are some limitations or factors inhibiting non-doctrinal or empirical research. During the empirical research procedure researcher has to start field work to get information and data. But he has to face some problems like authenticity of data ,i.e., researcher is supposed to have full-proof of the data so collected by him in order to fulfill his research problem. Throughout the research work, researcher collects number of data from where he has to extract the relevant material for his particular work, which is one of the tough jobs. Even for field work, researcher has to spend money and time more than that of a doctrinal research. Here researcher before the starting of his work has to design properly so that time and money will not waste. At the time of research design, researcher has to fix his variables according to particular group or sets in a particular geographical area. Along with this, the researcher, while carrying out his empirical research may has to face certain kind of danger which may hamper his reputation, even threat to his life. For instance, a researcher while carrying out his research regarding the terrorist activities in certain area is required to meet the rebellions to collect his data. In such collection, he may lose his life as police and administrative authorities may consider him as one of the rebellions. In certain cases, a researcher may not get the permission from the competent authority to visit the places or area for his collection of relevant data. Also there are chances when the researcher may exceed the governmental rules and policies and as a result of this his research may come to an end.

Different methods of collection of data result in different types of research methodology. Here the purpose remains same as to answer particular research question or to solve the proposed hypothesis. In case of empirical approach, researcher throughout his research work has to answer basic four questions, i.e., why, whom, how and when related to research work. Why is to establishes the need for the study, whom is to find out the different variables, samples or population, where as how is for the selection of variables to observe and how to satisfy in analyzing them and finally when it is to solve the question related to time and cost factor related to the need of study⁴ .Data may be in form of numbers or narrative, which resulted to quantitative or qualitative research pattern.

Qualitative research is a method of inquiry employed in many different academic disciples, traditionally in the social sciences, but also in money market and further contexts⁵. Qualitative researchers aim to gather an in-depth understanding of human behavior and the reasons that govern such behavior.⁶ The qualitative method basically tries to solve the problem in reference to why and how along with the others, i.e., what, when and where. Here, data can be observed but not measured or it only deals with descriptions like human behavior, quality, beauty, impact, social interaction, cause and effect, words, images or objects. Qualitative research is subjective in nature where different methods of collecting information are adopted for tracing out related depth and impact related to any particular individual or focuses a particular group. The nature of this type of research is exploratory and open-ended.

Through this qualitative research work issues can be examined in depth and also interviews and not restricted to any specific questions and it can be easy to obtain human behavior and experience on the basis of those data. When qualitative research has some limitation like research quality is heavily dependent on the individual skills of the researcher and more easily influenced by the researcher’s personal biased, rigor is more difficult to maintain, asses and demonstrate by the researcher. Here, time is more consumed at the process of analyzing and interpreting those collected data. It may be biased data due to presence or using of words by researcher himself during data gathering. Confidentiality of any relevant fact is a problem of the researcher during presenting the finding for supporting the conclusion. Basically, quantative approach views human phenomena as being amenable to objective study, i.e., able to be studied. It gathers data in numerical form which can be put categories, or in rank order, or measured in units of measurement. This type of data can be used to construct pie-chart, graphs and tables of raw data. Here primarily deductive process used to test pre-specified concepts, concepts constructs and hypothesis that makes up a theory and the research document results by using objective language and the best thing is, it is useful for studying large numbers of people. Thus, in sociology, qualitative research refers to the systematic empirical investigation of social phenomena via statistical, mathematical or computational techniques.

Grant Henning defined the term as “the kind of research the involves the tallying, manipulation or systematic of quantities of data”⁷ In the words of John W. Creswel, quatiative research is “an inquiry into a social or human problem based on testing a theory composed of variables, measured with numbers, and analyzed with statistical procedure, in order to determine whether the productive generalization of the theory is true.”⁸ Again, the term quantitative research, as defined by L.R. Gay as “the collection of numerical data in order to explain, predict and/or control phenomena of interest.”⁹

The greatest strength of quantitative research is that it produces quantifiable, reliable data that are usually generalize to some large population, and often reduces and restructures a complex problem to a limited number of variables. But it has some weakness; it is more costly than using quantitative research. Another problem often rises that is changing of numbers. Here knowledge produced might be abstract and general for direct application to specific local situations, contexts and individuals.

Law is for the society and law is also the outcome of present reaction of the society. Society being a dynamic concept also influenced the law to become dynamic in character. On this basis, it can be said that law and the society are the two sides of the same coin. Therefore, the importance of study and research in the field of law as a special branch of knowledge hardly needs to be emphasized. Highlighting the need and importance of legal learning and research the National Knowledge Commission of India, inter-alia observed: “creating a tradition of research in law schools and universities is imperative if India has to transform itself from being only a consumer available legal knowledge to being a leading producer in the world of new legal knowledge and ideas.”¹⁰ The basic purpose of legal research is to explore the possibilities of improving the existing law to make it more effective and result oriented and/or to suggest a law on issues or facts for which there is no law in existence. Thus, legal research may be described as a process of identifying and retrieving information on various facts of human conduct and examine and analyze them in their legal perspective so as to solve the problems arising therefore.

Through empirical research, it is easy to study human behavior, their interactions, and attitudes pertaining to any law under the research studies. As law is of prime importance in the social life of the human beings whose activities are regulated and controlled by law. Law includes Acts and Codes, Rules and Regulations, Orders and Ordinances, by-laws, etc. It is well-known that law does not grow in a vacuum and at the same time it cannot be static. It has to be dynamic and must change as per the social needs and requirements. As such, social development including its planning and progress will be affected. So a law has to keep pace with social advancement and progress. Law helps to maintain law and order through the process of social engineering. All our activities right from the stage of birth to death and throughout our day and night, are regulated and controlled by laws. Law is to maintain law and order and for the administration of justice, civil as well as criminal.

Too many law students, legal research presents a challenge because it differs in many ways from other types of research they have conducted earlier. As mentioned earlier that the law and the society are very closely linked to each other, thus, it can be stated that law is necessary for a society. An initial step in developing research expertise is to develop an awareness of the types of materials that constitute “the law”, and of the relationships between these materials. In the process of researching a legal issue, it may be necessary to consult statutes, cases and/or regulatory materials. A major challenge for a novice research is to gain a prospective on how such sources may apply to a particular subject matter and how they relate to each other. A major area in which legal research differs from other research is in need for comprehensiveness in primary authority research. When presented with a legal issue, the researcher must endeavor to locate any potentially relevant authority which would be binding in the applicable jurisdiction. As law is organic, the legal researcher must also learn to appreciate the need to update and verify every source upon which he intends to rely in developing a legal argument.¹¹ The empirical study of law, legal systems and legal institutions is widely viewed as one of the most exciting and important intellectual developments in the modern history of legal research. Motivated by a conviction that legal phenomena can and should be understood not only in normative terms but also as social practices of political, economic, and ethical significance, empirical legal researchers have used quantitative and qualitative methods to illuminate many aspects of laws meaning, operation and impact.¹² Empirical research helps us to understand how the law works in the real world-the impact that law, legal institutions, legal personnel and associated phenomena have on people, communities and societies, economic and political factors have on law, legal phenomena and institutions. Empirical work on law draws an a range of social research methodologies, and can be found within academic groupings such as socio-legal studies, law in context, law and society, empirical legal studies, criminology and criminal justice, as well as within more mainstream departments in law and the social sciences. In some countries such empirical scholarship is booming.¹³

According to Hart a legal system consists of rules¹⁴. Rules are duty-imposing or power-conferring, and clusters of rules constitute institutions of a legislative and adjudicative kind. In other words, law can also be considered as a silent fact of social life that on important matters there are usually legal rules, and they are usually clear and determinate. Possible issues for research are: the character and composition of social rules, whether law is made up of rules and whether rules capture the full scope of law, the variety of rules, how rules work and are applied in practice. The common aim of empirical research is to understand how law and legal institutions work in practice, how law is experienced by officials and the people, and how it influences their behavior. Law as it is written is one thing, how it works in reality is another. What occurs in the interpretation and application of law in the welfare department, the magistrate’s court, or the licensing agency, until recently has fairly much unknown and yet of considerable social importance. The same can be said of how people use law and legal institutions, raising questions such as whether the rights they have on paper are upheld in practice, and if not, what obstacles impede fuller implementation and enforcement. Empirical research is the means for testing how successful law is in achieving its own goals and, at times, for exposing its failures. Apart from the workings of the state legal order, two other themes are prominent in empirical research. One concerns the functions of law, whether certain functions are essential to society, and, if so, whether laws must have certain content in order to perform those functions. The other strand of empirical research, and the most recent, is how and to what extent law and legal ideas enter into people’s understanding attitudes, and activities. The approach, often framed as legal consciousness, at first emphasized how and to what extent people adopt ideas and concepts from state law and apply them in their actions. The approach has now expanded to include wider questions, such as, what people think what law is, the sourced of their ideas of law, and how they use them in daily life. Widening the scope of research in this way shifts the emphasis from officials to the people, and to some degree from state law to other more informal senses and sources of law. This is a significant development in empirical research and opens up a number of questions about the nature of law, and whether the people share the same view of state law as officials, or ways.¹⁵ To say that empirical researchers are interested in issues of social policy which are reflected in law, and in the implementation of that policy through legal practice, leaves much still to be explained about the nature of empirical work. One possible starting point is with the observation that empiricists aim to describe the legal world as it is, not as it is meant to be, with many studies emphasizing the disparity between the text book depictions of legal and judicial processes and their everyday reality. It was Rosco Pound in the early years of the last century who first drew the distinction between law in books and law in action. The essential point being that the study of statute and decided cases is not sufficient as a means of discovering how legal institutions and legal practitioners conduct themselves. Many aspects of legal process are characterized by the exercise of discretion, and by the development of working practices which do not figure in any account of legal rules. This gap between legal texts and the day-to-day reality of legal practice has become a preoccupation of the empirical researcher. Studies have been conducted which demonstrate, for example, that the way in which police officers arrive at arrest and detention decisions is often at odds with legal rules, that decision-making in the courtroom reflects the attitudes and prejudices of the judge who hears the case as well as the clinical application of the law; and the way in which lawyers dispose of their cases frequently departs from legally prescribes procedures. The empirical research tends to give considerable prominence to the voice to the consumer of legal services. In the best work of this kind, the consumer (whether litigant, witness, victim or defendant) is not regarded as the sole arbiter of the value and effectiveness of legal services, but the consumer perceptiveness of legal services, but the consumer perspective is seen as having its own validity, which means that it can be a useful corrective both to some rule-based accounts and to the voice of the professional practitioner. Some of the most influential research of this kind has achieved its impact precisely because it has demonstrated that the experience of those on the receiving end of the legal process was not understood by the legal practitioners whose job was to safeguard their interests and who saw themselves as doing this in good faith.

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2. Dr. Paranjape Vinay N. Legal research – current trends. Legal Education Research Methodology. PP77. Para 4.

3. Dr. Mona Purohit. Legal Education and Research Methodology. PP 179. Para 4

4. Dr. Robergs. (2010). Research Methods-Introduction to Empirical Research. Dissertation. June Summer Session.

5. Denzin, Norman K. Lincoln and Yvonna S. (Eds). (2005). The Sage Handbook of Qualitative Research. 3^rd ed. Thousand Oaks.

6. Qualitative Research. Wikipedia visited on 1^st Jan’2014 at 5pm

7. Supra 6

8. Ibid.

9. Ibid.

10. Agarwal, R.K. (2001). Indian Legal Research: An Evolutionary and Perspective Analysis. PP138.

11. Marshal Thurgood. (2013-2014). Introduction to Legal Authorities and Legal Research. Law Library Guide to Legal Research. Available at: http://www.law.umaryland.edu/marshall/researchguides/tmllguide/chapter1.pdf. visited on 23^rd dec’2013 at 1pm.

12. Cane Peter & Knitzer Herbert. The Oxford Handbook of Empirical Legal Research. Oxford Handbooks in Law. Available at: http://www.amazon.com/oxford-Handbook-Empirical-Research-Handbooks/dp/0119965994X; visited on 23^rd dec’2013 at 1:05pm.

13. Israel Mark & Hay Iain. Guide to Research Ethics. Available at: http://www.ukcle.ac.uk/resources/ethics/what.; visited on 27^th dec’2013 at 3:10pm.

14. Moody Daniel.( March 8, 15 & 22, 2002) Empirical Research Methods. Research Methods Class. Monash University; Australia. Available at: http://www.itu.dk/~oladjones/semester%203/advanced %20it%20mgt%20and%20software%20engineering/project/materials/what%20is%20empirical%20research1.pdf; visiting on 5^th jan’2014 at 2:31pm.

15. Cane Peter, Kritzer Herbert M. (2010). The Oxford Handbook of Empirical Legal Research. Oxford University Press.

Received on 12.03.2015 Modified on 18.03.2015

Int. J. Ad. Social Sciences 3(1): Jan. –Mar., 2015; Page 23-28