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Kinds of Research Methods

The document discusses different types of legal research including historical research, doctrinal research, non-doctrinal research, comparative research, and case law analysis. It provides details on historical research and doctrinal research, describing their purpose and sources used.

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0% found this document useful (0 votes)
106 views14 pages

Kinds of Research Methods

The document discusses different types of legal research including historical research, doctrinal research, non-doctrinal research, comparative research, and case law analysis. It provides details on historical research and doctrinal research, describing their purpose and sources used.

Uploaded by

Anirban De
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Research Methods and Legal Writing

Unit - 1

TYPES OF LEGAL RESEARCH:

(a) Historical Research,

(b) Doctrinal Research (or) Traditional Research,

(c) Non-Doctrinal (or) Socio-Legal (or) Empirical Research,

(d) Comparative Research,

(e) Induction and Deduction Research,

(f) Other Kinds of Research,

(g) Case Law Analysis,

(h) Oral Advocacy.

(a) HISTORICAL RESEARCH:

Historical Research means “Finding out the previous law in order to understand the
reasons behind the existing law and the course of its development.”

P.M.Bakshi in his essay “Legal Research and Law Reform” stated Historical Research as “On the
Archives Building in Washington, there is a famous inscription which reads:

“ALL THAT’S PAST IS PROLOGUE”.

These are pregnant words and not mere rhetoric. The past often explains the present, most
vividly”.

Historical research in this context is not meant a discussion of the history of each rule of law
or of each statutory provision for the sake of mere intellectual delight or for mere record.
Like all other types of research required for the purpose of law reform, historical research is
useful in law where the present statutory provision or rule of law has raised meaningful
queries and it becomes necessary to explore the circumstances in which the present position
came about.

Not unoften, an exploration of the historical material gives a clue to the reasons why a
particular provision was framed in the form in which it now appears. This often removes
certain doubts, or even supplies to the researcher the reasons that justify the present
provision - reasons which may not otherwise be apparent. Obviously, where such a fruit is
yielded by historical research, it has its own utility. It prevents one from making a
suggestion for change in the law which one was tempted to make (before knowing the past),
but which now appears to be unnecessary.

Secondly, historical research may often reveal that alterations in the law on particular lines
which are now tentatively under consideration had already been thought of in the past also,
in the earlier attempts at reform of the law, but had been rejected for sound and valid
reasons.

Thirdly, historical research would often show that a particular existing provision, fully
justifiable at the time when it was introduced, is no longer so justifiable because the reasons
that justified the original inclusion of that provision are no longer valid. Historical research
reveals the reasons, which might otherwise remain obscure.

Finally, on more general level, when the history of a particular idea which has been given a
concrete shape in the law is studied in depth, it shows the gradual evolution of the law on
certain lines, thus showing the general trend of change. It is true that some jurists fight shy
of history [Sir William Holdsworth, A History of English Law, Vol. XIII at 125 (1966 reprint].

Jeremy Bentham stated “we are told, had scant respect for history and contributed little to an
understanding of legal and social change in a continuum.”

But it is now well recognised that in many cases there is certain logic in the way in which the
law evolves, even though, in some other cases, one may, no doubt, find that the law had in
the past developed rather on haphazard lines.

Of course, when one speaks of historical research, one is not confined to pure law. Even
though the material directly under study may be legal, that is to say, the source to be
consulted may be a traditional legal source, the factual material that comes to light and the
knowledge of ideas gathered from such a source, may often have an interest that transcends
the exclusively legal field. In fact, social and legal factors cannot be always reduced to water
tight compartments. Any adequate appraisal of the precise nature and rate of change in a
particular country must also pay special attention to the effect of relevant physical,
demographic, technological and ideological variables [. Edward.S.Crowin, The Constitution
and What it means Today, Preface at V (12th Edition, 1958)].

Notwithstanding Bentham’s view that “a science of law and legislation, could be created which
was governed by laws as invariable as those which governed the physical world.”

Sources of Historical Material:

Notwithstanding the availability of general books on Indian legal history and Indian
constitutional history, the researcher will find that when he sits down to tackle a particular
subject assigned to him in a project of law reform, the historical material is not easily
traceable. At least, it is not as easily traceable as Precedents.

So far as pure statute law goes, some of the commentaries, no doubt, supply the reader with
the text of the corresponding provisions in earlier statutes. But this does not always fully
satisfy the curiosity of the researcher, and may not, in every case, yield sufficient light as to
why a certain provision was phrased in a certain manner in the corresponding earlier
statute.

For this purpose, he will have to consult the relevant legislative debates. Fortunately, so far
as central Acts go, these are excellently preserved in the national archives or state archives in
regard to the older Acts. If the researcher finds it necessary (as he often may) to know the
contemporaneous judicial understanding or exposition of the earlier provision, he will
certainly like to go to the sources that contain such exposition. Experience has shown that
one of the best sources to be consulted for this purpose are the earlier' commentaries on the
particular statute [ P.M.Bakshi, Legal Research and Law Reform, ILI, First Reprint 2006].

(b) DOCTRINAL RESEARCH (or) TRADITIONAL RESEARCH:

Introduction:

Doctrinal legal research into Legal Rules, principles, concepts or doctrines. It


involves a rigorous systematic exposition, analysis and critical evaluation of legal rules,
principles or doctrines and their inter-relationship. It arranges the existing law in order and
provides thematic parameters for such an order. It also concerns with critical review of
legislations and of decisional processes and their underlying policy .

Doctrinal legal research, thus, involves:

(i) Systematic analysis of statutory provisions and of legal principles involved therein, or
derived therefrom, and

(ii) Logical and rational ordering of the legal propositions and principles.

The conventional legal approach to the law is all about doctrine. Legal academics
understand that the language of judicial opinions represents the law. The classical form of
legal scholarship was doctrinal research, in which a researcher examined the content of a
legal opinion to evaluate whether it was effectively reasoned or to explore its implications
for future cases. Doctrinal research was grounded in a descriptive premise that reasoned
argument from doctrinal premises actually explained judicial decisions. In other words this
type of research may also be called as “Traditional Research”.

In a doctrinal research, a legal scholar takes one or more legal propositions as a starting
point as focus of his study. Dr.S.N.Jain observed that “doctrinal Research involver’s analysis of
case law is arranging, ordering and systematizing legal proposition and study of legal institution
through legal reasoning or rational deduction [S.N.Jain, Doctrinal and Non-Doctrinal Legal
Research, 14 J ILI 487 (1972)].

Sources of doctrinal research:

Ordinarily conventional legal sources are used in doctrinal research. Scholar undertaking
doctrinal research takes secondary data relevant to his proposition. His sources not only
include Statutes or enactments – but also reports of committees; legal history, judgment etc.
Acts passed by state legislatures and parliament comes under this category of sources.
Judgments of Supreme Court and high courts also come under above mentioned sources.
They have primary authority. Text books, periodicals, commentaries also come under
sources of doctrinal research but they are not as authentic as original sources like enactment
and case published by authorised publisher.

Suitable examples and case laws:


This kind of research is carried on by all the Judges, Lawyers and Law teachers.

The two most important examples of traditional research are the Law of Torts and
Administrative law. These two areas of law have been developed by the Judges rather
than the theoretical researchers. According to Cardozo [ Benjamin Cardozo, The Nature of
Judicial Process, 23 (1921)] “law or legal propositions are not final or absolute. They are in the
state of becoming. Accepted norms or principles whether Statutory or as principle of justice,
equity and good conscience are applied again and again to test its veracity or authenticity as
a true principle of Law. If it is found to be unjust, it may be modified or changed to meet the
present requirement.

For example, the Indian Penal Code, 1860 has declared that an attempt to commit suicide is an
offence and the person attempting to do so is punishable under that law. But in Nagbushan
Patnaik’s Case [ P.Rathinam Nagbhooshan patnaik v. Union of India and another, A.I.R 1994 Pg.
1844] the Supreme Court had declared this provision is unconstitutional as it is in violation
of Article 21 of the Constitution of India which confers on the people, the right to personal
liberty. As interpreted by the Supreme Court the right to personal liberty under Article
includes the right to die as well and hence a person attempting to commit suicide cannot be
punished under the section of the Indian Penal Code.

The Supreme Court has observed as follows:

"Section 309 of the Penal Code deserves to be effaced the statute book to humanize our penal
laws. It is a cruel and irrational provision and it may result in punishing a person again
(doubly) who has suffered agony and would be undergoing ignoring because of his failure
to commit suicide. Then an act of suicide cannot be said to be against, religion, morality or
public policy and an act of attempted suicide or attempt to commit it causes no harm to
others, because of which states interference with the personal liberty of the concerned
person is not called for. Thus Section 309 of the IPC violates Art. 21 and so. It is void. May it
he said that such View would advance not only the cause of humanization, which is a need
of the day. But of globalization also, adverse sociological effects are caused by the death of
the concerned person and not by one who had tried to commit suicide. Indeed, those who
fail in their attempts become available to be more or less as useful to the family as they were.
So the person to be punished is one who had committed suicide but he is beyond the reach
of law and cannot be punished. This provides no reason to punish a person who should not
be punished."

The problem of suicide is of controvertible nature. The question whether a person is free to
choose the manner and time of his own death has generated thought provoking debate for a
long time.

As the latest decision of the Supreme Court on the point, Gian Kaur v. State of Punjab [ (1996)
2 SCC 448], lays down, life is considered the most precious commodity and every effort has
to be made to preserve it. The Court, in the instant case, made it clear that the right to life,
including the right to live with human dignity would mean the existence of such right upto
the end of natural life. This also includes the right to a dignified life upto the point of death
including a dignified procedure of death. The Supreme Court also reversed its earlier
judgement in the Rathinam Case [ (1994) 3 SCC 394.] and held that the right to life does not
include a right to die.

Commenting on Administrative Law, Grundstein has observed:

“The creation of a body of law where none had hitherto existed is a social achievement. It is
to be an achievement not to be underestimated. It also serves as a reminder that at particular
periods in the history of law the creative working out of legal doctrine both necessary and
critical and justifiably a paramount concern of legal research [ N.D.Grundstein:
Administrative Law and the Behavioural and Management Sciences, 17th Journal of Legal
Education – 122 (1964 – 65)].”

Apart from this our statutory law, is replace with such phrases or Vocabularies which have
no definite answer for all situations. The Courts have been given the discretion to interpret
and apply them so as to sub serve the social need, e.g., ‘just and equitable’, `public order’,
‘reasonable Opportunity of being heard’, ‘reasons to believe’, ‘rash or negligence act’,
‘reasonable apprehension’, ‘industry’, etc. while interpreting these phrases the judiciary
itself has evolved certain norms which are vague and flexible [ S.N.Jain, Doctrinal and Non-
Doctrinal Legal Research, 14 J ILI 487 (1972) ]. Which can be made certain and workable by
evolving principle on the basis of research.

Ours is a welfare society is to adjust the conflicting interest of various components of the
society by applying the principle of "reasonable classification. But what is a reasonable
classification is in itself a matter of discussion and debate. Here the researcher can find out
as to what standard can be termed as reasonable classification- Likewise, as to what can
precisely be termed as ‘basic structure’ of the Constitution is not clear. It can be determined
by making a thorough enquiry into it. The task of a doctrinal researcher is not a purely
mechanical one.

While inferring a principle on the basis of available knowledge in the area of research, he
may apply logic, ethics, and requirements of the day and out of several alternatives, he
chooses the best one. i.e. the one which best serves the interest of the society. In modern
context, the doctrinal researcher has to find out and propose those principles, rules and
regulations which can serve the purposes what Roscoe Pound has termed as “social
engineering” as well as the existing doctrine/principles of law may become certain and stable
so that social goals may be achieved.

If the researcher happens to be a judge, he can give concrete shape and stability to the legal
principles by applying the principle of review or revision or overruling. A good number of
cases may be cited to substantiate this point of view, e.g. Shankeri Prasad [A.I.R 1951 S.C. 458]
and Sajjan Singh’s [A.I.R 1965 S.C. 845.] Cases were overruled by Golak Nath Case [A.I.R 1967
S.C. 1643.] which was subsequently overruled in Keshavanand Bharati case [A.I.R 1973 S.C.
1461]. Similarly a definite shape was provided by the Supreme Court to the right of personal
liberty as given in Article 21 of the Constitution in A.K.Gopalan’s case [A.I.R 1950 S.C. 27].
But its scope was widened in Menaka Gandhi [A.I.R 1978 S.C. 597] and in subsequent other
cases because the Court was convinced that with the passage of time the meaning and scope
of the right to personal liberty has considerably widened since its decision in A.K.Gopalan’s
case.

The Court has introduced changes not only in the area of Constitutional Law, but also in the
area of Labour law, Criminal law as well as Property Law. The Courts have held that death
sentence should not be imposed in all cases in which the offence of murder is established,
but only in rarest of rare cases. Death penalty is now an exception, life imprisonment is the
rule [Jagmohan Singh v. Uttar Pradesh, A.I.R, 1973 SC 947]. Not only the execution of death
sentence in public has been held to be a barbaric act and that the person sentenced to death
to also entitled to procedural fairness till the breath of his life[Triveniben v. State of Gujarat,
A.I.R, 1989 SC 142 ].

The Court has also recognized the right to die and hence an attempt to commit suicide is
more an offence. Although in a recent judgment in Gyan Kaur v. State of Punjab and others, the
Supreme Court has reversed this judgment and has held that the attempt to commit suicide
is a punishable offence.

Most of the works of doctrinal researchers result in some concrete proposals for problems in
hand, but sometimes, it fails, especially when the subject is growing very fast or when the
research was undertaken merely to test the logical consistency and technical soundness of a
proposition.

Essential characteristics of doctrinal research:

1. This type of research involves analysis of legal proposition or legal concept.

2. Legal propositions from enactments, administrative rules or regulations, cases of


courts can be a part of doctrinal research.

3. Conventional sources of data are used.

Doctrinal research looks at the following issue.

a. The aim of preferred values.

b. The problems posed by the gap between the policy goal and the present state of
achievement.

c. Availability of attentive choice for the implementation of goals.

d. The prediction and consequences that were made.

Basic tools of Traditional Researcher:

The basic tools of a doctrinal legal researcher are:

1. Statutory materials,

2. Case reports,
3. Standard textbooks and reference books,

4. Legal periodicals,

5. Parliamentary Debates and Government Reports, and

6. Micro films and CD-ROM.

These tools, depending upon the nature of information they contain, may be re-categorized
into primary and secondary sources of information. National Gazette and Case Reports fall
in the first category, while the rest fall in the latter.

(c) NON-DOCTRINAL (or) SOCIO-LEGAL (or) EMPIRICAL RESEARCH:

Introduction:

However, in the recent past, doctrinal legal research has received a severe jolt due to change
in the political philosophy of law from the laissez faire to the welfare state envisaging socio-
economic transformation through law and legal institutions, the consequential new
substantive and functional facets of law, and certain compelling pragmatic considerations
arising from this metamorphosis.

Non-Doctrinal research is fact oriented. Legal researcher undertaking non-doctrinal research


“takes either some aspect of the Legal decision process or the people and institution supposed by
regulated law.”

Prominent reasons and arguments stressing the need for inquiry into social facets of law are:

a. The emergence of sociological jurisprudence and its underlying philosophy assigned


‘law’ the task of ‘social engineering’.

b. In the light of such a role assigned to law, it is argued, it becomes necessary to look
into the ‘factors’ or ‘interests’ of the Legislature that play significant role in setting the
legislative process in motion and in identifying the beneficiaries thereof and the
reasons there for.

c. It becomes necessary to carry out frequent attitudinal studies of those whose legal
position is sought to be modified by a given law as well as of those who are vested
with the power of interpreting and implementing it so that the Legislature, armed
with this feedback, can fulfill its job in a more satisfactory manner.

d. A number of facts or factors that lie outside a legal system may be responsible for
non-implementation or poor implementation of a given piece of social legislation.

e. There is nearly always a certain ‘gap’ between actual social behaviour and the
behaviour demanded by the legal norm and certain ‘tension’ between actual
behaviour and legally desired behaviour.

Demerits of Socio-Legal (or) empirical research:


(1) It is time consuming and costly. It calls for additional training, great commitment of
time and energy, for producing meaningful result.

(2) It needs a strong base of doctrinal research. The researcher must have strong base of
legal doctrines, case law and legal institutions.

(3) It is extremely weak in solving a problem in hand; similarly, it is not effective where
the law is to be developed from case to case.

(4) It cannot give a direction as to what course the law should follow to be useful.

(5) It cannot remain unaffected from human vices, upbringing and thinking because
acceptance of a new system of law in India depends on many factors such as
awareness, value, capability and pattern of adaption.

(d) COMPARATIVE RESEARCH:

The comparative legal research is used to study legislative texts. Jurisprudence and also
legal doctrines, particularly of foreign laws. It stimulates awareness of the cultural and social
characters of the law and provides a unique understanding of the way law develops and
works in different cultures. It also facilitates better understanding of the functions of the
rules and principles of laws and involves the exploration of detailed knowledge of law of
other countries to understand them. To preserve them, or to trace their evolution.
Accordingly, comparative legal research is beneficial in at legal development process where
modification, amendment and changes to the law are required.

The most common comparative legal scholarship is cross jurisdictions comparison of laws of
different legal systems. It is typical tor researchers who undertake this research to examine
the law as it is while at the same time provide ideas and views for future legal development.
For instance, Kierkegaard examined the “rules applicable to the formation of electronic
contracts in the United States and the European Union”. Another example is found in Pure
Economic Loss in Europe “where a group of researchers took a painstaking task of comparing
laws governing pure economic loss in 13 different legal systems across the European
Union”.

Nowadays, comparative approach also refers to the study of specific aspects of the law from
the perspective of Shari’ah (The code of Law derived from the Koran and from the teachings and
example of Mohammed. Shariah is only applicable to Muslims) in comparison to civil law.

So far as the countries which may be chosen for the purpose of comparison it must be kept
in mind that most of our present day laws have been borrowed from the English Law and
we are well acquainted with that system. Therefore, we can have recourse, very often to the
English law. We can also leave recourse to the laws of the countries belonging to common
Wealth e.g. Australia, Canada, Newzeland, etc.. Recourse to the law of United States of
America and continental countries e.g. France, Germany, Switzerland and Sweden can also
be had. Here again it could not be out of context to refer that as regards interpretation of
Constitutional and Administrative Laws, we rely heavily on U.S., French and British
practice. The material which should be accepted for comparison should be generally the
codified law.

But if there is no codified law, on a particular subject, the authoritative works of eminent
persons, papers and articles may also he examined for the purposes of comparison. Effort
should always be made to have primary source for comparison. But if primary sources are
not available only then recourse may be had to the secondary and tertiary sources.

But in case of secondary and tertiary sources their authenticity must be checked and
rechecked two or more primary, secondary and tertiary sources may be checked with each
other.

Difficulty, however, is faced when the primary, secondary or tertiary sources of law of other
countries are in the language not understood by the researcher. He can obtain and make use
of only translation. If possible, in the language he understands. But if the translation has not
been the work of a specialist, then it cannot be relied upon as a suitable material for
comparison.

If these handicaps are properly handled, this method of research is very useful for
suggesting reform in law. However, in the name of reform, foreign legal system should not
be imported in this country blindly. Only such reforms are suggested as suits to the Indian
ethos and which is necessary for the progress and development of the country.

(e) INDUCTION AND DEDUCTION RESEARCH:

Induction and deduction

1) The choice between induction and deduction depends on a series of factors, but
above all on the objectives of our study. It can also be linked to and determine the
differences between qualitative and quantitative methods.

2) In law both approaches are used:

Deduction Research (also called syllogism)

1) General proposition or premise : To steal is an act contrary to Sec.1 of the Theft Act,1978.

2) Minor proposition : Anne has stolen a book.


3) Conclusion : Anne has acted contrary to Sec.1 of the Theft Act, 1978.

Inductive Research (reasoning by analogy)

1) An eyewitness saw Anne take a book from the shelf and leave the store (witness could be
mistaken)

2) Anne was stopped outside the store with the book by the store detective.

3) That particular book had not been noted out of the store by the computer sales system
(computer could be wrong)

4) 1-3 taken together proves the physical act (actus Reus) of theft at the level of evidence.

5) Crimes usually require mental element, the mens rea. (Anne alleges that she did not intend
to take the book).

6) Consider Sec.1 of the Theft Act 1978.

This also demonstrates that the application of rules requires taking into account the social
and legal context of the act. Rules provide the starting point for deliberations.

(f) OTHER KINDS OF LEGAL RESEARCH:

1. Applied and Fundamental Research:

Applied research (or) Action Research aims at finding a solution for an immediate
problem. Here the researcher sees his research in a practical context. While in Fundamental
Research (or) Pure Research (or) Basic Research, the researcher is mainly concerned with
generalization and with the formulation of a theory. He undertakes research only to derive
some increased knowledge in a field of his inquiry. He is least bothered about its practical
context or utility. Research studies concerning human behavior carried on with a view to
making generalizations about human behavior fall in the category of fundamental or pure
research. But if the research (about human behavior) is carried out with a view to solving a
problem (related to human behavior), it falls in the domain of applied or action research.

The central aim of applied research is to discover a solution for some pressing practical
problem, while that of fundamental research is to find additional information about a
phenomenon and thereby to add to the existing body of scientific knowledge. The ‘applied’
scientist is thus works within a set of certain values and norms to which he feels committed.
A sociologist, for example, when works with a social problem to find solution therefor and
proposes, through a systematic inquiry, a solution or suggests some measures to ameliorate
the problem, his research takes the label of ‘applied’ or ‘action’ research. But when he
undertakes a study just to find out the ‘what’, ‘how’ of the social problem, his inquiry takes
the nomenclature of ‘pure’ or ‘fundamental’ research.

However, the above-mentioned ‘distinguishing factor’ between the ‘applied’ and


‘fundamental’ research need not be conceived as a ‘line’ putting the two ‘across’ the ‘line’
forever or an ‘either-or’ dichotomy. In fact, they are not mutually exclusive. There is a
constant interplay between the two, each contributing to the other in many ways.

2. Statistical Research:

This kind of research is very significant in the area of science especially Economics,
Commerce etc. But so far as law is concerned, it can be said without doubt, that this will be
of some help only for suggesting law reform. However, there are people who are of the
opinion that this kind of research may be applied in the field of law as well. The most
difficult aspect of this kind of research is the collection and examination of statistics. It is a
specialized function. A person having no knowledge of statistical activity; cannot undertake
this kind of research. However, in limited areas requiring simple statistics, this process may
be applied, e.g., in the area of land reform; disposal of pending cases by the court
enhancement in wages, and other monetary benefits etc.,

In order to collect statistics, field research in the form of sample survey , opinion polls,
questionnaires etc is conducted and it can be conducted efficiency only by a qualified person
with an aptitude for research and having professional training and legal knowledge. In case,
the person conducting statistical research has no legal knowledge, the involvement of
persons from the area of law is must as it facilitates the smooth conduct of the work for the
purposes of law reform. Since law is a behavioural science, therefore statistical research
should be applied with caution and only where it is necessary to do so.

3. Critical research:

As we know that the objective of legal research is not only to propose suggestions for legal
reform. It may be carried on for many other purposes as well. Where, however, the object of
research is only to indicate in which way it is to be carried on, such a research is termed as
critical research because in such cases the objective is to ascertain a common principle or
norm and hence, it is also termed as ‘normative research’ . In this kind of research gathered
material is thoroughly examined and a common thread is ascertained which ultimately
becomes the basic norm.

For the purposes of critical research, the necessary material is obtained from codified law,
judicial observations and pronouncements and academic Writings. In matters of critical
research, public opinion also plays an important role and public opinion must be ascertained
in a proper manner.

4. Quantitative and Qualitative Research:

Quantitative research is based on the measurement of quantity or amount. It is applicable to


a phenomenon that can be expressed in terms of quantity. It is systematic scientific
investigation of quantitative properties of a phenomenon and their inter-relation. The
objective of quantitative research is to develop and employ mathematical models, theories
and hypotheses pertaining to the phenomenon under inquiry. The process of measurement,
thus, is central to quantitative research because it provides fundamental connection between
empirical observation and mathematical expression of quantitative relationship.

Qualitative research, on the other hand, is concerned with qualitative phenomenon, i.e.
phenomenon relating to or involving quality or kind. For example, when a researcher is
interested in investigating the reasons for, or motives behind, certain human behavior, say
why people think or do certain things, or in investing their attitudes towards, or opinions
about, a particular subject or institution, say adultery or judiciary, his research becomes
qualitative research. Unlike quantitative research, qualitative research relies on reason
behind various aspects of behavior.

(g) CASE LAW ANALYSIS:

In the case-law method of research much creativity goes on is shown by Cardozo in his
work, The Nature of the Judicial Process. His thesis is that law or legal propositions are not
final or absolute but are in the state of becoming. He quotes Munroe Smith:

The rules and principles of case law have never been treated as final truths, but as working
hypotheses, continually retested in those great laboratories of the law, the courts of justice.
Every new case is an experiment; and if the accepted rule which seems applicable yields a
result which felt to be unjust, the rule is reconsidered. It may not be modified at once, for
the attempt to do absolute justice in every single case would make the development and
maintenance of general rules impossible; but if a rule continues to work injustice, it will
eventually be reformulated. The principles themselves are continually retested; for if the
rules derived from a principle do not work well, the principle itself must ultimately be re-
examined.

‘Case-Law’ consists of rules and principles stated and acted upon by the Judges in giving
decisions. Like English Law, Indian Law also is largely a system of Case Law. That is the
decision in a particular case constitutes ‘Precedent’. According to the ‘Doctrine of Precedent’ it
is not everything said by a Judge, when giving judgement that constitutes precedent. But
only the reason of the decision given in the judgement constitutes precedent. So the reason
stated in the judgement of an appeal case becomes a necessary subject matter of inquiry and
analysis by a lawyer. This requires identification of the most important parts of the
judgement. They are:

(1) A statement of the significant facts of the dispute before the court – the facts that are
necessary to an understanding of the dispute and of the court’s decision, those that
influenced the court’s reasoning and decision.

(2) A statement of a relevant procedural details such as the explanation of the legal
nature of the controversy and of the remedy sought,. The actions and the ruling of
the lower court.
(3) A statement of narrow legal question or issue(s) that the appellate court was asked to
resolve.

(4) A brief statement of the Appellate Court’s decision, both procedural and substantive.

(5) An explanation of court’s reasoning in reaching its decision.

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 naive 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. To take a few examples here, in Bengal Immunity Co. v. State of
Bihar[AIR 1955 SC 661], the court, while overruling State of Bombay v. United Motors,[ AIR
1953 SC 252] stated:

All big traders will have to get themselves registered in each State, study the Sales Tax Acts
of each State, conform to the requirements of all State laws which are by no means uniform
and, finally, may be simultaneously called upon to produce their books of account in
support of their returns before the officers of each State. Anybody who has any practical
experience of the working of the sales tax laws of the different States knows how long books
are detained by officers of each State during assessment proceedings.... The harassment to
traders is quite obvious and needs no exaggeration.

In Jyoti Pershad v. Union Territory of Delhi,[ AIR 1961 SC 1602] the Supreme Court observed:

The criteria for determining the degree of restriction on the right to hold property which
would be considered reasonable, are by no means fixed or static, but must obviously vary
from age to age and be related to the adjustments necessary to solve the problems which
communities face from time to time.... lf law failed to take account of unusual situations of
pressing urgency arising in the country, and of the social urges generated by the patterns of
thought-evolution and of social consciousness which we witness in the second half of this
century, it would have to be written down as having failed in the very purpose of its
existence.... In the construction of such laws and particularly in judging of their validity the
Courts have necessarily to approach it from the point of view of furthering the social interest
which it is the purpose of the legislation to promote, for the courts are not, in these matters,
functioning as it were in vacuo, but as parts of a society which is trying, by enacted law, to
solve its problems and achieve social concord and peaceful adjustment and thus furthering
the ,moral and material progress of the community as a whole.

In the famous Golak Nath v. State of Punjab,[ AIR 1967 SC 1643] Subba Rao, C.J., said:
But, having regard to the past history of our country. it could not implicitly believe the
representatives of the people, for uncontrolled and unrestricted power might lead to an
authoritarian State lt. therefore, preserves the natural rights against the State encroachment
and constitutes the higher judiciary of the State as the sentinel of the said rights and the
balancing wheel between the rights, subject to social control.

The court’s concern with social justice is depicted forcefully in following observations of
Bhagwati, J., in Kanwarlal v. Amarnath [AIR 1975 SC 308].

This produces anti-democratic effects in that a political party or individual backed by the
affluent and wealthy would be able to secure a greater representation than a political party
in or individual who is without any links with affluence or wealth. This Would result in
serious discrimination between one political party or individual and another on the basis of
money power, and that in its turn would mean that “some voters are denied an 'equal' voice
and some candidates are denied an ‘equal Chance’”. The democratic process can function
efficiently and effectively for the benefit of the common good and reach out of the benefits of
self-government to the common man only if it brings about a participatory democracy in
which every an, however lowly or humble he may be, should be able to participate on a
footing of equality with others. Individuals with grievances, men and women with ideas
and vision are the sources of any society’s power to improve itself.

(h) ORAL ADVOCACY:

1. What Should You Try To Accomplish With Oral Argument ?

A. Don’t just repeat your brief. Use the medium of personal argument to accomplish things
you cannot do with a written brief:

1. Be more personal and interactive -- have a conversation with the court about the case.

2. Be more graphic -- use more personal language.

B. Address and resolve the court’s concerns about the case

C. Create a mood/theme that makes it easier for the court to accept you theory of defense.

1. Don’t just repeat your legal theory.

2. Make the fairness of reversal the keystone of your argument.

3. Show the court in human terms why it is right for them to rule in your favour.

a. Develop the emotional theme that will make the court feel good about reversing.

b. Use the most important facts of your case to reinforce your emotional theme.

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