McConville, M & Hong Chui, W, “Research Methods for Law”, Edinburgh University Press, 2007
Legal scholarship has historically followed two broad traditions. The first, commonly called ‘black-letter law’, focuses heavily, if not exclusively, upon the law itself as an internal self-sustaining set of principles which can be accessed through reading court judgments and statutes with little or no reference to the world outside the law.
A second legal tradition which emerged in the late 1960s is referred to as ‘law in context’. In this approach, the starting point is not law but problems in society which are likely to be generalised or generalisable. Here, law itself becomes problematic both in the sense that it may be a contributor to or the cause of the social problem, and in the sense that whilst law may provide a solution or part of a solution, other non-law solutions, including political and social re-arrangement, are not precluded and may indeed be preferred. The law in context approach has given an extra dimension to legal studies that has been taken up in every higher education institution.
Apart from these broad traditions, however, legal scholarship has also undergone significant transformations and is facing significant challenges. One is the increasingly global character of legal life. This is seen in the ready access that can now be secured to materials describing and analysing legal systems across the world and requiring, at the least, that research and scholarship pay attention to alternative perspectives and consider their relevance to the local situation.
Additionally, it is now inescapable that transjurisdictional instruments, such as Conventions relating to human rights, increasingly penetrate domestic legal systems and stimulate those responsible for operating or interrogating national systems to have regard to wider considerations than was possible when the world was considerably larger and less easily navigated.
Types of Legal Research
Doctrinal Research – a number of titles on legal research are available and have been adopted as textbooks for legal research courses across the world.
The ‘black-letter law’ approach or doctrinal research relies extensively on using court judgments and statutes to explain law.
The ‘black-letter’ research aims to systemise, rectify and clarify the law on any particular topic by a distinctive mode of analysis to authoritative texts that consist of primary and secondary sources. One of its assumptions is that ‘the character of legal scholarship is derived from law itself’1.
Empirical Legal Scholarship / Socio-legal Studies
In recent years, several commentators have criticised pure doctrinal analysis for its ‘intellectually rigid, inflexible and inward-looking’ approach of understanding law and the operation of the legal system.
Socio-legal studies, feminist legal studies, critical legal studies and new approaches to international law encourage an interdisciplinary approach to the study of law.
The non-doctrinal approaches represent a new approach of studying law in the broader social and political context with the use of a range of other methods taken from disciplines in the social sciences and humanities. Socio-legal scholars point to the limitations of doctrinal research as being too narrow in its scope and application of understanding law by reference primarily to case law.
Roger Cotterrell comments: “All the centuries of purely doctrinal writing on law have produced less valuable knowledge about what law is, as a social phenomenon, and what it does than the relatively few decades of work in sophisticated modern empirical social-legal studies …”2
The merits and relevance of using other disciplines such as sociology, political science, economics, psychology, history and feminism as aids to legal research have been widely recognised. Interdisciplinary or socio-legal research broadens legal discourse in terms of its theoretical and conceptual framework which guide the direction of the studies and its specific research methodologies are able to generate empirical evidence to answer research questions.
On the whole, these approaches to legal scholarship not only provide an alternative to the traditional legal analysis but also encouraged lawyers to engage in critical and cutting-edge research to examine the relationship between law and gender, social class, ethnicity, religion and other social relations of power.
Socio-legal scholarship employs wide range of applied social science methods including quantitative and qualitative research. These methods aim to decipher the workings of legal, social and cultural processes.
It is important to note that empirical legal scholarship is complementary to doctrinal research and both methodologies can be used simultaneously to examine a legal issue, as advocated by academic lawyers.
International and Comparative Legal Research
The third type of legal research … is international and comparative legal research. The reason for its inclusion is mainly because of the
increasing influence of international and supra-national legal materials, and the increasing need for legal scholars to refer to materials from a variety of jurisdictions, together with the demands made by contemporary law schools upon their students to engage in critical thinking.
This type of research crosses traditional categories of law, integrating public and private international law with domestic law, European law and the comparative method. It aims to facilitate our understanding of the operation of international law and legal systems and its impact on the formulation of public policy in an era of global interdependence.
Qualitative legal research – non-numerical, four broad divisions: doctrinal, problem, policy and law reform. Regardless of whether the research is done is one of the four board divisions or a combination of these, various qualitative approaches should be taken. The researcher’s aim should be to reach certain conclusions (or inferences) based on what is found.
In this sense, legal research is no different to other forms of academic or scholarly research, and rigorous empirical methods should be used. Using such empirical methods, however, requires a level of academic thoroughness and it is here, according to others, that much of the legal research which has been undertaken falls short.
Ethnographic research – valuable insights are provided into the role of theory in qualitative research, the difficulties of formulating research questions, and the multi-faceted nature of gaining and maintaining access.
Comparative research – usually been seen as an extension of the study of national law and justified in terms of the benefits it brings to the national legal system. … an expanded view of comparativism can open up a range of exciting opportunities for legal researchers.
Cross-jurisdictional research – interrogates fundamental issues of context, comparison, interaction and interpretation, and lays essential foundations for the theory and methodology of comparative contextual analysis.
Comparative research can combine law, politics and theory whilst overcoming difficult problems of access. Conflict is a central feature of law and thereby of much socio-legal enquiry.
High stakes means that the lifeblood of research, the gathering and processing of information, rapidly acquires political overtones.
Traditional non-empirical legal research
International law – the methodologies for scholarship in this field are unavoidably shaped by the nature of International Law’s ‘sources’, which lawyers from other fields frequently find to be notably idiosyncratic. This feature of International Law’s sources results from the fact that they emerge unavoidably from the decentralised and mainly consensual nature of the international legal system.