Intro to Legal Research

8/4/2019 Intro to Legal Research

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Basic Legal Method

(SAM 2293)

Introduction to Legal Research

Br. Mahyuddin Daud

Department of LawsCentre for Foundation Studies

IIUM

Semester 1 2011/2012


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Definitions of Legal Research

Research is basically a systematic,thorough and rigorous process ofinvestigation that increases

knowledge. This definition apparently portrays

research as a general process of

enquiry applicable to everything fromsimple to sophisticated and fromsciences to legal field.


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Legal Research is the ability toanalyse a problem involving aquestion of law, and through research,

to provide a solution to it. (GlanvilleWilliams, Learning the Law, Ch.12, pg206)

Legal Research is conducted tocater the need to find the law whichapplies to a set of facts


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Legal Research is a combination ofskills which includes the ability to:

Identify and find relevant legal sources

and materials Extract essential points from those legal

sources and materials

Apply the law to the facts of the problemto produce satisfactory answers

Communicate the reasons for thoseanswers


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The Purposes of LegalResearch

1. To know, identify, recognise, distinguish,appreciate and analyse the law byreading primary and secondary legalresources What to read?

Statutes

Cases

Law reviews / articles

Newspaper

Non-fiction books


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2. The research finding is applied inadvising courts or clients about theapplication of legal doctrine to

specific cases, transactions, or otherlegal events

3. Criticise judicial opinions and in case

of conflicts between the decisions ofdifferent court, suggests theresolution to those conflicts.


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4. Legal research can also be performed byscholars who wanted to provide teachingmaterials for students. The end productsinclude books and modules. Similarly, somescholars performed legal research to

understand the legal doctrine and the law asit is.

To achieve this objective the researcherexamines the causes, the consequence and theinterpretation of the relevant legal doctrine and

legal practices in its social context. The result ofthe research highlights among others thepractical usefulness of the law and thesignificance or insignificance of any given theory.


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5. To acquire an understanding of thelegal subject while arguing for abetter way of doing things.

A researcher who performs this type ofresearch critics and comments legaldoctrine and practices from theperspective of different sciences likes

economics, politics and sociology.


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Legal Research: A FundamentalSkill Legal research must be

Correct

ComprehensiveCredible

Cost-effective


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A Legal Researchers Goals

Find correct resources to rely upon The law that governs the facts in your case and

which was in effect at the time the facts occurred

Be comprehensive

To find the answer to an issue, researchcompletely cover mandatory primary authority,persuasive primary authority and usefulsecondary authority

Be credible

Find the strongest authority to rely upon Be cost-effective

Proper planning is crucial to avoid waste of time,money and energy.


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Format of Legal Research

LegalResearch

Doctrinal

Qualitative

Non-Doctrinal

Qualitative Quantitative

Comparative


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The Format of Research

Legal Research may be divided legalresearch into doctrinal and non-doctrinalresearch.

Non-doctrinal research can be qualitative orquantitative while doctrinal is qualitative sinceit does not involve statistical analysis of thedata. Both types of research may overlap.

There is also a third format of legal researchwhich consists of either doctrinal or non-doctrinal or a combination of both performedusing a comparative legal method.


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Doctrinal Research

Doctrinal research asks what the law is on aparticular issue.

It is concerned with analysis of the legal

doctrine and how it has been developedand applied.


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Researchers who dwelt in this type ofresearch are concerned with the philosophyof law and the topics involve are restricted.

They mostly focus on the nature of law and

legal authority; the theories behind particularsubstantive areas of law, such as torts orcontracts; and the nature of rights, justice andpolitical authority.

Others may study the legal decision makingprocess, and the theories of legalinterpretation and legal reasoning (Gordon,2008).


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Non-doctrinal Research

Non-doctrinal research, also known associo-legal research is a legalresearch that employs methods taken

from other disciplines to generateempirical data to answer researchquestions.

It can be a problem, policy or law

reform based. Non-doctrinal legalresearch can be qualitative orquantitative.


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Non-doctrinalresearch

Qualitative Quantitative


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Non-doctrinal approach allows theresearcher to perform inter disciplinaryresearch where he analyses law from

the perspective of other sciences andemploys these sciences in theformulation of the law.

Ex: Water law, Space law, etc


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Because non-doctrinal legal researchuses empirical data, it provides vitalinsights into the law in context, i.e. howthe law works in the real world.

Empirical legal research is valuable inrevealing and explaining the practicesand procedures of legal, regulatory,

redress and dispute resolution systemsand the impact of legal phenomena on arange of social institutions, business andcitizens


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Similarly, an empirical research in lawand economics applies legal analysis,statistical inference and economic

modeling to fundamental areas ofnational and international law such astort liability, property, contracts,

criminal law, law enforcement andlitigation.


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Comparative Research

The third research format iscomparative legal research. Thisformat is used to study legislativetexts, jurisprudence and also legaldoctrines, particularly of foreign laws.

It stimulates awareness of the culturaland social characters of the law and

provides a unique understanding ofthe way law develops and works indifferent cultures (Walker, 1981).


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It also facilitates better understanding of thefunctions of the rules and principles of lawsand involves the exploration of detailedknowledge of law of other countries tounderstand them, to preserve them, or totrace their evolution


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Accordingly, comparative legalresearch is beneficial in a legaldevelopment process where

modification, amendment, andchanges to the law are required.

Documents

Intro to Legal Research