Project Report on Legal Research Methodology

Contribution of Research in the Academic Career of Law Student

Submitted in the partial fulfilment of B.A.LL.B (HONS.) 1st Semester

Submitted to: Ms.RACHNA SHARMA

Submitted By: Shubhangi Gupta (545) Ravneet Kaur Bedi (555) Prerit Goyal (565) Amit Pandat (575)
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ACKNOWLEDGEMENTS
The design, implementation and completion of this project report would have been impossible without the help and contribution of the talented student body and faculty of Rajiv Gandhi National University of Law, Punjab, Patiala. We are extremely grateful to our Vice-Chancellor Dr. Gurjeet Singh and our lecturer Ms. Rachna Sharma for her continuous support for the project, from initial advice and contacts in the early stages of conceptual inception, and through on-going advice and encouragement to this day. She was instrumental in conceptualization of this study. One of very important contributions to be thanked is the favours done by the library staff and IT Department. We also thank the University authorities for giving us such an opportunity to be involved in an innovative work. Last but not the least, we want to thank our friends who appreciate us for our work and motivated us. We would also like to extend our heartfelt regards and gratitude to all, including those contributors whose names have not been mentioned here but are directly or indirectly involved with this project. Shubhangi Gupta (545) Ravneet Kaur Bedi (555) Prerit Goyal (565) Amit Pandat (575)

TABLE OF CONTENTS

CHAPTERS

PAGE NO.

1. Introduction............................................................
1.1 What is research?.......................................................................... 1.2 Why do we need research?........................................................... 1.3 Significance of research............................................................... 1.4 Benefits of research in an assignment of a student...................... 1.5 Types of research.........................................................................

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6-7 7 7-8 8 8-9

2. Legal research........................................................
2.1 What is legal research?................................................................. 2.2 Characteristics of legal research................................................... 2.3 Methodology................................................................................

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10 11 11-19

3. Utility of legal research.........................................

3.1 The Use of Research................................................................... 3.2 Objectives of Legal Research..................................................... 3.3 Facts, Events and Data of Legal Research.................................. 3.4 Research Brings Law Reform..................................................... 3.5 Types of Research Needed For Law Graduates..........................

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20-21 21-22 22-23 23-24 24-25

4. Authentic works and their reviews..............................26

4.1 Legal Research and Methodology by S.K. Verma and M.Afzal Vani.........26-27 4.2 Research Methods for Law edited by Mike McConville and Wing Hong Chui.27 4.3 Learning the Law by Glanville Williams.........................................................28 4.4 Research Methodology Methods and Techniques by C.R.Kothari..................29

5.

Conclusion
5.1 The Reality......................................................................................................30

Bibliography...............................................................................30-32

CHAPTER 1
INTRODUCTION

No one denies that research in the real world is of increasing importance and that conducting legal research is a complex business.1 Nevertheless, how far are law students, graduates, the legal profession and academic lawyers equipped to undertake research? How are their research skills comparable to researchers with some other background? What pitfalls await the new researcher and can these be avoided or addressed through careful planning? Yes these can be avoided through research, in order to expand the knowledge of legal processes, improve understanding of specific legal problems and produce findings of significance for society. Every law school offers instruction on legal research to equip students with skills of identifying the sources of law and relevant legal materials, and advanced methodology courses to support not only undergraduate students but also those writing dissertations in later postgraduate years. Undeniably legal research is a complex business, and its not merely a search for information; it is primarily a struggle for understanding.2 Both academic and practising lawyers are required to think deeply about information recovered and discovered and what are the best methods of collecting, analysing and presenting information and data. In many respects, strong legal research and writing skills are fundamental tools for legal practice. Methodology of Research The present project report is based on the topic Contribution of Research in the Academic Career of a Law Student. The methodology of research used in this project is not just one single type of method but a combination of methods. Descriptive method was used to carry out the research on this topic. It included fact finding enquires. Its major purpose was to describe the state of affairs as it exists at present. As a researcher we were only able to report what has happened or what is happening. It was tried
1

Mike McConville and Wing Hong Chui, Research Methods for Law, Edinburg University Press, Edinburg, 2007, pp 7. 2 M.J.Lynch, An Impossible Task but Everybody Has To Do It-Teaching Legal Research in Law Methods, Law Library Journal, 1997, pp 415.

to discover the causes of various existing problems. But simultaneously analytical method of research was also used to use facts or information already available, and analyze these to make a critical evaluation of the material. Along with these different methods library was one factor which played a crucial role in letting us go through different books, journals or other study material available on the topic. The library of our Rajiv Gandhi National University of Law, Punjab, Patiala provided us with quite relevant material which helped us to complete our project. Books like Legal Research Methodology, Research Methods in Law etc. proved to be quite helpful. Based on the research of a lawyer and a research student Nicholas Hancox, some of the observations say that academic lawyers wants to understand the way that law works and how it affects people and organisations, but practitioners are not interested in why the law says what it says. For academic lawyers getting published is more important, but practitioners ought never to have time to write books.3 While acknowledging these as his subjective observations the divide is somehow inevitable because of the different expectations between the sets of lawyers. It is apparent that scholarly legal research is comprehensive and directed towards conclusions whereas practising lawyers are accountable to their clients who seek their professional advice and knowledge on the matters of legal rules, authorities and procedures. Thus the way academic and practising lawyers see the meaning of law and legal research is diverse. Nonetheless, in order to advance, students, lawyers and academics are recommended to be open-minded and flexible in terms of choosing the best method of understanding and investigating a matter of concern.4 But for all this to happen, first of all we need to know what research is? 1.1 What is research? 1. A voyage of discovery or a journey/movement from the known to unknown; an attitude; an experience ; a method of critical thinking ;a careful critical enquiry in seeking facts for principles. 2. An art of scientific investigation Scientific and Systematic search for pertinent information on a specific topic.
3

N.Hancox, What Lawyers Want: Comparing Academics with Practitioners, paper presented at the 7th Annual Conference of the Learning in the Law, 7th January 2005, University of Warwick. 4 T. Hutchinson, Researching and Writing in Law (2nd edn) Pyrmont, NSW: Lawbook Co., 2006, pp 7.

Process of arriving at dependable solution to problems through the planned and systematic collection, analysis and interpretation of data.

3. A systematized effort to gain new knowledge Search for (new) knowledge/facts through Objectives, Systematic and Scientific method of finding solution to a problem implicit question + explicit answer +data to support the answer not synonymous with commonsense ,but systematic ,objective

(purposeful),reproducible, relevant activity having control over some factors 4. An activity caused by instinct of inquisitiveness to gain fresh insight / find answers to question /acquires knowledge. 1.2 Why do we need research? 1. To get a degree. 2. To get a respectability 3. To face a challenge 4. To solve a problem 5. To get intellectual joy 6. To serve society -By increasing standards of living in case of S&T and, - By showing right path to society in case of social and behavioural sciences. 1.3 Significance of Research 1. Advancement of wealth of human knowledge. 2. Tools of the trade to carry out research; provides tools to look at things in life objectively5

Retrieved From http://www3.hf.uio.no/sarc/iakh/lithic/AmudNet/Amudproj7.html, visited on 4 November, 2010

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3. Develops a critical and scientific attitude ,disciplined thinking or a 'bent of mind 'to observe objectively (scientific deduction and inductive thinking );skills of research will pay-off in long term particularly in the 'age of information'(or too often of misinformation) 4. Enriches practitioner and his practices ;provides opportunity to study a subject in depth ;enable us to make intelligent decisions ;understand the material which no other kind of work can match 5. As consumer of research output helps to inculcate the ability to evaluate and use results of earlier research with reasonable confidence and take rational decision. 6. Research provides the basis for nearly all government policies in our economic system 7. Research is equally important for social in studying social relationship and in

seeking answers to the various problems. 1.4

Benefit of research in an assignment of a student Good research establishes outcomes beyond a product to be evaluated. Good research helps students to learn about their audience. Good research creates scenarios that are rich in contextual information. Good research provide interim readers as with any real project, good research give students time and a schedule of interim deadlines.

1.5 Types of research6 1. Descriptive v/s Analytical Research It includes surveys and fact findings enquiries of different kinds. The major purpose of descriptive research is description of the state of affairs as it exists at present. The methods of research utilized in descriptive research are surveys methods of all kinds, including comparative and correlation methods. In analytical research, On the other hand, the researcher has to use facts or information already, and analyse these to make a critical evaluation of the material

Retrieved From http://www.authorstream.com/.../manojpraveeng-442519-types-of-research/, visited on 9th November, 2010

2. Applied v/s Fundamental An Applied research aims at findings a solution for

an

immediate problem facing a society or an industrial/business organisation, whereas fundamental research is mainly concerned with generalization and with the formulation of a theory. Research concerning some natural phenomenon or relating to pure mathematics are Examples of Fundamental Research 3. Quantitative v/s Qualitative - Quantitative research is based on the measurement of quantity or amount. It is applicable to phenomena that can be expressed in terms of quantity. Qualitative research, on the other hand, is concerned with qualitative phenomenon, i.e., phenomena relating to or involving quality or kind. Examples of Qualitative research Motivation Research. 4. Conceptual v/s Empirical Conceptual research is that related to some idea or theory. It is generally used by philosophers and thinkers to develop new concepts or Re-interpret existing ones. On the other hand, empirical research relies on experience alone, often without due regard for system and theory. Observation

CHAPTER-2
LEGAL RESEARCH

Legal Research refers to the process of searching reference material to find the answer to a given legal question. Legal Research is routinely conducted by paralegals, attorneys and other legal professionals. It can be conducted electronically or through the use of book materials, and it plays a vital role in the preparation of a legal case. So, now we need to find out more about the legal research.7 2.1 What is legal research? Legal research ,according to one source is the process of identifying and retrieving information necessary to support legal decision -making .In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with an application and the communication of result of the investigation. The process of legal research varies according to the country and the legal system involved. However, legal research generally involves takes such as: 1) finding primary source of law or primary authority in a given jurisdiction; 2) searching secondary authority for background information about a legal topic and 3) searching non-legal sources for investigators or supporting information. Legal research is performed by anyone with a need for legal information, including lawyers, law librarians and paralegals .sources of legal information range from printed books ,to free legal research websites and information portals to fee database vendors such as lexis-nexus and Westlaw .law libraries around the world provide research services to help their patrons find the legal information they need in law schools ,law firms and other research environment. Many law libraries and institutes provide free access to legal information on the web, either individually or via collective action, such as with the free access to law movement.

Retrieved from http://www.wisegeek.com/what-is-legal-research.htm, Visited on 3rd November, 2010

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2.2 Characteristics of legal research 1. The legal research deals with the social and behavioural phenomena. It studies behaviour of human beings as members of society, and their feelings responses, attitude under different circumstances. 2. Legal research is carried on both for discovering new legal facts and verification of the old ones. 3. Legal research tries to establish casual connection between various human activities. At the first casual look at various human behavioural attitudes, moods and temperaments, the presence of any system may appear to be an impossible, but a close research study is bound to disclose the truth, that most of them are motivated by definite rules and universal laws. 4. Legal research tries to give solutions of legal problems or case. 2.3 Methodology Let us look at the methodological implications of this under three heads: 2.3.1 The Discovery of Truth The basic assumption of a legal researcher is that, for practical purposes, the truth about things is knowable; that words can be used to convey meaning. The strength of Roman law, of the common law and of international law, lies very much in the fact that they all have well defined terms. Some of the other social and economic sciences are very much less precise in their terminology. However difficult and sometimes even dangerous ,it may be to express truth the scholar will at least like the judge and the honest witness, attempt to do this as Aristotle would say,'' for truth's own sake, rather than from fear of the opprobrium resulting from being found out in a deliberate conference on private international law. In these cases the discussions are on a part time basis and the brunt of the drafting inevitably falls upon the man chosen as scribe, though of course dissent is possible sometimes lengthy. One form of research which used to be met with on the continent and which I am not in favour of, is that which I am not in favour of, is that which involved the selection of topics by a teacher and the production of memoirs by students for the professor ,who
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then used the results of the research not to encourage publication by the individual student ,but merely as a means of producing a book which he published in his own name and without acknowledgement .This form of professional piracy is I hope, dying out . Its demise may have been hastened by literary on slaughters on it. If the theme of students be used, they should be given acknowledgement for their work. 2.3.2 First Hand Study The greatest difficulty I have found when I have been supervising research is to insist on what the Encyclopaedia Britannica terms First hand study of authorities or experiment. The ''best evidence'' rule is a good rule for researchers .Of courses some original material may not be available .If so, a note should be made to this effect by the writer. In international law, jurisprudence, Roman law and comparative law, what is to be done about foreign languages? Clearly, a little Latin and law-French is all that is usually needed for research on English law. But what of subjects where there is a mass of literature in all the principle tongues? No man can read every language .Life would be too short to read everything on many important topics of international law, even in the principal languages of the world .If a student cannot himself read a foreign source he knows of, and cannot obtain a translation of it, and then he should frankly say so in his thesis. A sensible examiner will understand linguistic limitations. Knowledge of foreign languages is invaluable for any subject which transcends national system of law. It will be vital if we are to have some influence in shaping the new Europe of the communities. As for our own African students, for the next generation they should learn French; with French and English they can have dealings with all Africa and with a great slice of the western world. I sometimes think that, compared with the Americans ,we are slipshod about the language requirement for PhD. A working knowledge of two foreign languages is required and passes in language tests are needed before the degree of PhD Is granted in the U.S.A. If linguistic knowledge is vitally essential to a piece of research, then researchers should be made to acquire it. One of the advantages of remaining in the same university for some time is that you become acquainted with its ''service facilities'' for languages .You also acquire a knowledge of the library facilities8 of other faculties, and of the work of colleagues in

E.g. Hansard, the Seldon Society, the State Papers, the Records Society

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other faculties whose aid can be so valuable when the subject of a legal thesis impinges on their fields. This is really why even legal research is best done in a university context and not in a segregated specialised institute away from a university. In a large and friendly university a great deal can be done for a keen researcher. One must sometimes be prepared to send a research student in law off to other departments to obtain background knowledge of economics, politics, sociology or anthropology, even of medicine, if he is to see his research subject in its context. But let us return to the research itself .These which purport to be legal research, but which are merely discussions of what X and Y said about Z book are, to my mind, often useless .It has been said that books about books are a sign of degeneracy. Such works are mere secondary discussions of secondary opinions of first-hand materials. 2.3.3 Training the Researcher: Some Empirical Rules With some trepidation in this learned company, one of the most critical audiences in the world ,consisting as it does of academics who are lawyers I am going to risk for mulating a few tentative rules that have occurred to me as a result of examining these and in supervising research for many years. The first research rule would be: what is wanted is sound, publishable research, not unattainable perfection. If we are to enliven our teaching, if, indeed, we are to keep it alive and to contribute to the advancement of learning, we must do, and stimulate research. Publication of anything worthwhile is clearly desirable even though, as any person who has published knows ,every publication is a hostage to fortune ;the severest of critics are often those who have never published .Indeed ,publication is the very thing the perfectionist will probably never attain :le mieux est I ennemi du bien. And yet we cannot say, with the duke of wellington, Publish and be damned! Learning undigested by quiet thought may be labour lost; thought unassisted by learning may be perilous. The second research rule: Research involves honest and dispassionate investigation. Scholars in the same field can now meet and know each other, and help each other in their work. Only an effective system of personal supervision and a thorough oral or written

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examination of the candidate can prevent possible abuses .Most British universities insist on both these with the added safeguard of an external examiner.9 The third research rule: No research candidate should be accepted by a Faculty unless it has someone able and willing to supervise him and has adequate research materials. The fourth research rule would be: Legal research should not, of course, be confined to books, articles, treaties, statutes and cases, but if necessary, experts should be sought out in the realms of law and related fields of finance and commerce and government for their experience. One should see how things tick, by letter, questionnaire and if possible, by visit, carefully prepared in advance, to those involved in the legal problems of the modern world selected for research. The fifth research rule would be: It is best to let the candidate, after he has expressed a general interest in a particular field and acquainted himself with it, suggest the topic. One would think that a candidate, having chosen a topic, would remember it, but it has been found necessary, again and again, to remind a candidate what his title is, and to require it to be written on each thesis which has failed because they were not on the subject of their title.10 The fifth research rule would be: A man must at all times have a plan around which he can arrange his material. He need not, of course, write his chapters in numerical order much will depend on what is available at the time of writing and, to some extent, on inspiration and enthusiasm. The conclusion is usually best left to the end! Some candidates need to be dissuaded from starting with their conclusion, and writing a thesis to support it .Such attempts may show a complete lack of objectivity and a closed mind that true investigation should correct. The writing of the introduction and a synopsis is usually also best left to the end: at no other time can the candidate really say what his work has proved to be about and it will not necessarily be confined to his initial hypotheses. The sixth research rule: A supervisor, who in any event should only undertake research in which he has a real interest, should never succumb to pressure to take on more students than he can properly and effectively manage. This is in view of his lecturing or
9

10

R.K.Mills, Legal Research instruction in a Law school, Law Library Journal, 1977, pp 343. Ibid, pp 344.

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administrative or other commitments. Experience has taught not to have more than six research students at any one time; each student should be seen regularly on his own.11 The seventh research rule would be: whilst responsible academic work must be done individually, there are immense advantages in doing it in close touch with a group of scholars in allied topics. Boredom and procrastination are the greatest dangers run by the solitary worker .He should say to himself work now, play later. It is necessary to stimulate most researchers.12 The eight research rule: All relevant material should be noted as read, and with full and accurate references. Otherwise as so many students find, much work will have to be done again. An efficient and accurate index should be kept by card, or loose leaf. The ninth research rule would be: Writing should not be deferred until everything has been read. One can read for ever; too protracted reading will often result in nothing being attempted .Alle beginpelen zijn moeielijk .All beginning are difficult. Conclusions are often harder still! We all know the typical case of the non-finisher who, from boredom with an over prolonged thesis, simply cannot bring himself to end it. Here the supervisor must act, as he must whenever any snag arises.13 The tenth research rule, which I call the rule of capture, is Not until a case or a document has been read and studied in the original does it becomes ones own for the purpose of citation. Again copyright must be respected. It will not be necessary for to elaborate the need of supervisors to press for neat work with standard punctuation, references and layout. Legal Research may be carried out for varied reasons. Some use it to identify the sources of law applicable to understanding a legal problem, and then find a solution to the problem that has been identified. It is apparent that practising lawyers are expected to conduct factual and legal research in an effective manner, use research as a tool to extend their knowledge on aspects of law and the operation of the legal system that are of great

11 12

E.L.Rubin, Law and the Methodology of Law(1997) Wisconsin Law Review, pp 525. Ibid, pp 526. 13 Ibid, pp 526.

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interest.14 This can be best illustrated with the help of a very major case like the Ayodhya dispute. In this case also it was seen that the lawyers had to do a lot of research work. In this case the lawyers had to start their research from the very beginning.

The Babri Masjid:

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One of Baburs generals, Mir Baki Khan came to Ayodhya in 1528 and built the

"Janmasthan" i.e. "Birthplace" Mosque.16 Mir Baki, after building the mosque, named it Babri Masjid. The Babri Mosque was one of the largest mosques in Uttar Pradesh, a state in India with some 31 million Muslims. By the middle of the 20th century, Hindus in the area were claiming that the mosque had not been used by Muslims since 1936, and according to a court ruling an idol of Rama was placed inside the mosque in the intervening night of 22/23 December, 1949.17 A movement was launched in 1984 by the Vishwa Hindu Parishad (VHP party) to reclaim the site for Hindus who want to erect a temple dedicated to the infant Rama (Ramlala) at this spot. On 6 December 1992, the structure was demolished by karsevaks, 150,000 strong, despite a commitment by the government to the Indian Supreme Court that the mosque would not be harmed. More than 2000 people were killed in the riots following the demolition. Riots broke out in many major Indian cities including Mumbai, Delhi and Hyderabad.

Historical Method Used in Research:

In 1767, Jesuit priest Joseph Tieffenthaler recorded Hindus worshiping and celebrating Ramanavami at the site of the mosque. In 1788, Tieffenthaler's French works were published in Paris, the first to suggest that the Babri Mosque was on the birthplace of Rama, saying that "Emperor Aurangzeb got demolished the fortress called Ramkot, and erected on the same place a Mahometan temple with three cuppolas" reclaimed by Hindus through numerous wars after death of Aurangzeb in 1707 A.D like they earlier fortified it during Jahangir's rule as Ramkot.

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Mike McConville and Wing Hong Chui, Research Methods for Law, Edinburg University Press, 2007 Retrieved From http://en.wikipedia.org/wiki/Ayodhya_dispute, visited on 3rd November, 2010 16 Sayyid Shahabuddin Abdur Rahman, Babri Masjid, 3rd print, Azamgarh: Darul Musannifin Shibli Academy, 1987, pp.29-30 17 Retrieved From http://www.allahabadhighcourt.in/gist4pdf, visited on 24th November, 2010

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During the 19th century, the Hindus in Ayodhya were recorded as continuing a tradition of worshiping Rama on the Ramkot hill. According to British sources, Hindus and Muslims from the Faizabad area worshiped together in the Babri Mosque complex in the 19th century until about 1855. In 1885, Mahant Raghubar Ram moved the courts for permission to erect a temple just outside the Babri Mosque premises. Despite validating the claim of the petitioner, the Faizabad District Judge dismissed the case, citing the passage of time.18 On 18 March 1886, the judge passed an order in which he wrote: I visited the land in dispute yesterday in the presence of all parties. I found that the Masjid built by Emperor Babur stands on the border of Ayodhya, that is to say, to the west and south it is clear of habitations. It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus, but as that event occurred 356 years ago, it is too late now to agree with the grievances. (Court verdict by Col. F.E.A. Chamier, District Judge Faizabad).19 Several later mosques were built in Faizabad district, in which the pilgrim city of Ayodhya falls. Ayodhya itself has a small Muslim population, though there are substantial numbers of Muslims 7 km away at District Headquarters - Faizabad. Since 1948, by Indian Government order, Muslims were not permitted to be closer than 200 yards away to the site; the main gate remained locked, though Hindu pilgrims were allowed to enter through a side door. The 1989 Allahabad High Court ordered the opening of the main gate and restored the site in full to the Hindus. Hindu groups later requested modifications to the Babri Mosque, and drew up plans for a new grand Temple with Government permissions; riots between Hindu and Muslim groups took place as a result. Since, then the matter is sub-judice and this political, historical and socio-religious debate over the history and location of the Babri Mosque, is known as the Ayodhya dispute.

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Gumaste, Vivek Can court verdict resolve Ayodhya dispute? Rediff News. Retrieved on 26 th November, 2010 19 Sarvepalli Gopal, Anatomy of a confrontation: the rise of communal politics in India, Penguin Books India(P) Ltd, 1991

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Reality of the Excavations found through Research: Before 2003, the standard view that an ancient Ram Janmabhoomi temple was demolished and replaced with the Babri Mosque was not supported by any archaeological evidence. References such as the 1986 edition of the Encyclopdia Britannica reported that "Ramas birthplace is marked by a mosque, erected by the Mughal emperor Babur in 1528 on the site of an earlier temple".20 However, archaeological excavations by the Archaeological Survey of India (ASI) in 1970, 1992 and 2003 in and around the disputed site have clearly found the evidence indicating that a large Hindu complex existed on the site.21 In 2003, by the order of an Indian Court, The Archaeological Survey of India was asked to conduct a more in depth study and an excavation to ascertain the type of structure that was beneath the rubble.22 The summary of the ASI report indicated definite proof of a temple under the mosque. In the words of ASI researchers, they discovered "distinctive features associated with... temples of north India". The excavations yielded: stone and decorated bricks as well as mutilated sculpture of a divine couple and carved architectural features, including foliage patterns, amalaka, kapotapali, doorjamb with semi-circular shrine pilaster, broke octagonal shaft of black schist pillar, lotus motif, circular shrine having pranjala (watershed) in the north and 50 pillar bases in association with a huge structure.23

Before the archaeological opinion was published, there were some differing viewpoints. In his Communal History and Rama's Ayodhya, written prior to the ASI researches, Professor Ram Sharan Sharma writes, "Ayodhya seems to have emerged as a place of religious pilgrimage in medieval times. Although chapter 85 of the Vishnu Smriti lists as many as fifty-two places of pilgrimage, including towns, lakes, rivers, mountains, etc., it does not include Ayodhya in this list.24 Sharma also notes that Tulsidas, who wrote the Ramcharitmanas in 1574 at Ayodhya, does not mention it as a place of pilgrimage. This
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15th edition of the Encyclopaedia Britannica, 1986, entry Ayodhya, Chicago: Encyclopaedia Britannica Inc. Retrieved From http://hinduism.about.com/cs/temples/a/aa082503a.htm, Visited on 1st November, 2010 22 Ratnagar, Shereen (2004)CA Forum on Anthropology in Public: Archaeology at the Heart of a Political Confrontation: The Case of Ayodhya Current Anthropology 45(2): pp.239-259, p.239 23 Suryamurthy R (August 2003) ASI findings may not resolve title dispute The Tribune-August 26, 2003 24 Sikand, Yoginder (2006-8-05). Ayodhyas Forgotten Muslim Past. Counter Currents. Retrieved 2010-09-26

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suggests that there was no significant Hindu temple at the site of the Babri Mosque or that it had ceased to be one, after the mosque was built.
25

After the demolition of the mosque in

1992, Professor Ram Sharan Sharma along with Historians Suraj Bhan, M.Athar Ali and Dwijendra Narayan Jha wrote the Historian's report to the nation saying that the assumption that there was a temple at the disputed site was mistaken, and no valid reason to destroy the mosque. The 2010 Allahabad High Court judgement came down heavily on these "eminent" historians, with one of the judges remarking that he was "surprised to see in the zeal of helping the parties in whose favour they were appearing, these witnesses went ahead and wrote a totally new story".26

25 26

Ali, M.Athar (2008). Mughal India. New Delhi, India: Oxford University Press. ISBN 978-0195696615 Retrieved From http;//www.telegraphindia.com/1101015/jsp/opinion/story_13057334.jsp, visited on 28 th November, 2010

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CHAPTER-3
UTILITY OF LEGAL RESEARCH

In real life it is usually very hard to tell whether or not a given piece of research may turn out to be useful. One of the main functions of research is it can lead to developments within a given branch of law and in some instances, may be the direct use for legislative law reform. It is significant that the modern systematic analysis of the law of contract owes much to the much edition of Anson;
28 27

one only has to compare it with earlier treaties in the field.

Moreover, articles and assistance written by academics have on many occasions been on

law reform agencies. The frequency with which they are cited in reports of committees is too well known to require specific reference. Similarly it has the following uses: 3.1 The Use of Research29: Control over society is possible only when we have a complete

1. Social concept. -

scientific study of society. 2. Social cohesion - The study of society creates better understanding between different social groups and creates the feelings of oneness, sympathy and understanding. If such understanding is created, a large part of national and international problems would be solved without much difficulty. 3. Social welfare - Social welfare can be achieved through socio-legal research. The legal research helps us to judge the magnitude of social evils and thus take necessary steps to remove them. By maintaining law and order social welfare can be attained. 4. Law reforms - There are various tools for law reforms. Research is an important tool for any project of law reforms. 5. Evolution of law - Legal research is used to find out the previous law in order to understand the reason behind the existing law and the cause of its evolution.

27 28

Ansons Principles of the Law of Contract appeared, in its first edition, in 1867 Such as Leake, A Digest of the Principles of the Law of Contract (London 1867) or Addison, A Treatise on the Law of Contract (5th edn., London, 1862) 29 S.R.Myneni and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2006

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6. Legal academicians - The professors in law colleges should posses a doctoral or research degree besides experience in research to get eligibility for recruitment. For this they have to enrol in universities and do research on any approved legal topic and get the degree. Research is an important element in legal practice. Lawyers are expected to perform research to an acceptable standard as a competent practitioner. Lawyers are responsible for uncovering as many legal authorities as possible to convince the judges. Citations to authorities enable lawyers to point out the relevant law for the judges to affirm that what the lawyers allege is the applicable law.30 For familiar cases, the judge probably already knows the law well, but citations to authorities are still needed. However, in obscure cases, the judge will need the lawyer to explain the applicable law, therefore, citations to statutes and cases are essential for this purpose. If there is no case on point in the jurisdiction, one will need to: find a case on point in a foreign jurisdiction. English cases are likely to be preferred, even Commonwealth (Australia, New Zealand, Singapore, India and Canada) cases may be considered due to the similar legal system and historical background; find cases on analogous issues and make a novel argument; argue from basic principles, such as the Federal and State constitutions, maxim of equity, and rules in the Restatements of the Law. Some judges are even willing to make new rulings by following persuasive authorities that are cited to them in court submissions. 3.2 Objectives of Legal Research31 1. Evaluative - objectives of a legal research may be evaluative, when the intention of the legal research is to find out how a legal rule came into being and what it is. For ex - to inquire into social roots of delinquency is evaluative in character. 2. Explicative. - When the objectives of a legal research is to ascertain the nature ,scope and source of law in order to explain what law is ,it is explicative research. If a legal research is conducted to analyse the nature of alcoholisation and the legal control of it through diverse laws it is explicative in nature.

30 31

Retrieved From http://www.scribd.com/search?cat=redesign&q.htm, visited on 5th November, 2010. S.R.Myneni, Legal Research Methodology, Allahabad Law Agency, 4th edn, 2007.

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3. Identificatory - The legal research may be identificatory also .If the object of a research is to ascertain for whose benefit a legal rule is made ,the nature of the research is said to be identificatory. If a study is intended to find out the beneficiary of land reform laws, it is identificatory in nature. 4. Impact analysis - An impact analysis of legislation may be the objective of a legal research. A study of the implementation of labour laws in factories may fall within the impact analysis. 5. Collative - A Study conducted to compare legal factors pertaining to a given situation is called a collative research. 3.3 Facts, events and data of legal research Facts expressed in words assume different meanings to different people, depending on their past experience as well as on many things which they associate with the facts and words. No two people have exactly the same experience by which to define the same facts and words as sometime the resulting difference is immensely great.32 Persons attach different meanings to the same word and the same things, those are in different 'universe of discourse that is, they do not take the same meaning. Legal Research is done on the basis of facts. According to J.R Lucas, facts are 'good simple souls; there is no guile in them, nor any room for subjective bias. Facts are not the simple solid elements from which the entire knowledge is constructed as facts rely on human perception and interpretation and description in language. The facts may be classified as unquestioned facts, accepted facts and establish facts. Facts can be distinguished between unquestioned and unquestionable facts. Facts for legal purposes usually cover the making and doing things, the existence of objects, states of affairs and events in general. When a theorist deals with or observes certain aspects of those activities, they can be called as facts. In the process of getting to know facts we see things, ideas, events, in a limited way.33 We do not see them as a hole .When we see only concerned aspects, parts or properties, our seeing is termed 'perception. The result of such perception or partially related observation can be called fact. Facts are purposeful relevant observation.
32 33

D.W.Vick, Interdisciplinary and the Discipline of Law, Journal of Law and Society, 2004 P.Hillyard, Invoking Indignation: Reflections on Future Directions of Socio-Legal Studies, Journal of Law and Society, 2002, pp 650.

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Facts must really occur .They should be observable and measurable in some way. Any 'event' requires many facts to be explained .Facts compel all observers to accept them on the basis of empirical experience. It is hard to measure legal facts. They are subjective, qualitative and dynamic and complex. Often there is a lack of homogeneity and university. Most of them are intangible or abstract. Therefore, it is very difficult to study them scientifically. Systematisation and orderliness in the arrangement of legal facts are not easily achieved.34

3.4 Research Brings Law Reform

Then research is undertaken as a part of the process of law reform, it is undertaken with a definite end, namely, making suggestion for improvement in the law on concrete and easily identifiable matters and the formulation of those proposals in precise terms. This approach is to be kept in mind throughout the process; at no stage it is to be lost sight and at every stage it is the major governing factor.35 Because of this consideration, certain limitations may creep in as to the quantum of research that can be undertaken; and again because of this consideration, the research may, from the very beginning have to be moulded in a particular direction. Research is one essential tool for any project of law reform. The major portion of legal research for the purpose of law reform is of three categories- analytical, historical and comparative. The first is concerned with what the law is; the second with its history and evolution and the third with the comparable position in other countries.36 Published materials on legal writings and research, while presenting much excellent guidance on the sources of law, do not adequately recognise the importance of the underlying process of research analysis. Some time ago it was observed that we know too little about the style and structures of legal research strategies.37 To a certain extent the methods to be adopted for research depend on the agency under whose auspices it is to be conducted. If the agency charged with suggesting the reform of the law on a particular subject is not a purely departmental committee, its outlook will be wider and the methods to be adopted by it will also be broad based.
34 35

Ibid, pp 651 S.K.Verma and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2006, pp 111-112. 36 Ibid p 112 37 Bruce G. Buchanan and Thomas E. Headrick, Some Speculation about Artificial Intelligence and Legal Reasoning, 23 Stan. L. Rev. 40 at 47 (1970-1971).

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3.5 Types of Research Needed for Law Graduate38 The type of research needed for the law graduate may be conveniently enumerated at this stage. Broadly speaking, almost all of the following process would be found to be necessary for each measure of law reform: 1) Analytical; i.e. finding out the existing law 2) Historical, i.e. finding out the previous law in order to understand the reason behind the existing law and the course of its evolution. 3) Comparative, i.e. finding out what the law is in other countries and considering whether it can be drawn upon, with or without modification. 4) Statistical, i.e. collection of statistics to show the working of the existing law. 5) Critical, i.e. finding out the defects in the existing law and suggesting reforms. The criticism has to be based upon (i) Public Opinion (ii) Reports of Previous Committees or Other Bodies (iii) Practical Experience (iv) Judicial Decisions (v) Academic Literature (vi) Changed Conditions and Scientific Developments (vii) Need for Harmonization with Other Laws Passed in the Meantime. Each of these processes is arduous and time consuming .For example - the process of finding out the existing law, i.e. analytical research, is comparatively easy where the law is codified and recent, but not so where the law itself has to be collected from a number of sources, or where judicial interpretation of the law have to be studied ,analysed and digested.39 Similarly the older the law is, the more difficult becomes the historical process. This is because it is not enough to study the immediate history of the existing
38 39

S.K.Verma and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2001 A.Bradney, Law as a Parasitic Discipline, 1998, Journal of Law and Society, pp 71.

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provision, even where the laws are codified. One has to go to the earlier history; it often happens that a controversy which has arisen on the existing provision owes its origin to a change of language made by the existing provision in the older one and so on.40

40

Ibid, pp 72.

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CHAPTER- 4
AUTHENTIC WORKS AND THEIR REVIEWS

4.1 The Legal research and methodology by S.K. Verma and M.Afzal Vani: Keeping in view the dire need of some authentic work on legal research in the country in 1983 on the occasion of its silver jubilee, the Indian law institute, as a premier research institute of the country, brought out a work on the subject, Legal Research and Methodology, based on contributions of various authors on relevant topics. Most of the articles in the book were specially commissioned by the institute for this work but some of them were reprints from some other journals of repute, in order to make it a comprehensive debate on the subject. The book was received well and found useful by researchers, teachers and students in the field of law.41 The articles in this book bring in focus the research attitudes of those involved in legal research and their preparedness for research and their being relevant and goal oriented. They also refer to the current trends in legal research and point out the hurdles and pitfalls in socio-legal research besides giving an account of law and behavioural studies in India and legal research and law reform

It also deals with the techniques of legal research with specific reference to the empirical methods of research, use of induction and deduction methodology in research, identification and formulation of research problems, research designing, sampling and participatory research. Then comes the supervision and conduct of research and explains the benefits of research through collaborative learning.

At last but not the least this book deals with the essays by some renowned writers on the diverse aspects of legal research including research on specialized areas and other miscellaneous topics. They explain the pattern of the study of law in different societies, present modules for research in administrative law, and describe the manner to prompt change in the legal system through research.

41

S.K.Verma and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2006

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On the whole this book is very helpful for the students of Universities and colleges to shape their courses in a systematic manner. 4.2 Chui: This book defines with legal research which may be carried out for varied reasons. Sometimes it is used to identify the sources of law applicable to understanding a legal problem, and then find a solution to the problem that has been identified. It deals with some simple yet complex questions that how are the research skills of law students or law graduates comparable to researchers with a medical science, social science or humanities background? What pitfalls await the new researcher and can these be avoided or addressed through careful planning? So this book 42does provide the reader with the answers to such questions and offers general and particular guidance to those interested in learning how to use legal research in order to expand the knowledge of legal processes, improve understanding of specific legal problems etc. Research methods for law edited by Mike McConville and Wing Hong

Still the primary aim of the book is to introduce some of the essential methodologies, approaches and tools of research in relation to different fields of law. Hopefully this would prove to be a cutting-edge volume advancing the readers knowledge of three specific kinds of legal research, including black-letter legal research, empirical research and international and comparative legal research.

The book has been designed to reach a wide audience including black-letter lawyers, socio-legal researchers and those in related disciplines such as sociology, political science and psychology. 4.3 Learning the law by Glanville Williams: Learning the law43 is unique among the law books. It does not say what law is; rather, it aims to be a Guide, Philosopher and Friend to the reader at every stage of his legal studies. This little book aims to help those who have decided to study lawwhether in a University or Polytechnic or Technical College or as a professional qualification.
42 43

Mike McConville and Wing Hong Chui, Edinburg University Press, Edinburg, 2007 Glanville Williams, Learning the Law,

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For the new student, after a brief history and outline of the English legal system, there is a great deal of information and advice to help the reader gain the maximum advantage from his studies. The book introduces legal problems and describes how to tackle them, how to look up points of law and how to make the best use of the time available for study. This is followed by a most helpful discussion on how to prepare for and keep calm during examinations. It gives helpful advice on the opportunities available, both within the legal profession and outside it.

It is an essential reading for anyone embarking on the study of law or on a course that includes an element of law. An excellent introduction to the methods and skills of the law. Beautifully written and gives a sense of historical importance to the law...prepares the student extremely well for legal studies.

Therefore for more than half a century, "Williams: Learning the Law" has been essential reading for every undergraduate law student in the common law world, providing a clear introduction to the methods and skills of the law. It explains the many skills students need to study effectively for a law degree, including case law techniques, interpreting statutes, undertaking legal research, taking part in mooting and mock trials, and preparing for exams. It gives students the skills they need to undertake legal research for their course and carry forward in their future career. It introduces legal problems and describes how best to tackle them. It helps students understand the meaning of statutes and case law, and offers advice on study methods and exam preparation. 4.4 Research Methodology: Methods and Techniques by C.R.Kothari This second edition44 has been thoroughly revised and updated and efforts have been made to enhance the usefulness of the book. In this edition a new chapter The Computer : Its Role in Research have been added keeping in view of the fact that computers by now become a indispensable part of research equipment. The other salient feature of this revised edition, subject contents have been developed and restructured at several places. New problems have also been added in various

44

C.R.Kothari, Research Methodology: Methods and Techniques

28

chapters.

Adoption of appropriate methodology is an essential characteristic of quality research studies irrespective of the discipline with which they are related. The present book provides the basic tenets of methodological research so that researchers may become familiar with the art of using research methods and techniques.

The book contains introductory explanations of several quantitative methods enjoying wide use in social sciences. It covers a fairly wide range, related to Research Methodology. The presentations are uniformly economical and cogent. Illustrations given are meaningful and relevant. The book can be taken as a well-organised guide for researchers whose methodological background is not extensive.

The book is primarily intended to serve as a textbook for social science students of all Indian universities. It will also serve as a text for the students of M.Phil, Management, and students of various institutes. It will serve all practitioners doing research of one form or other in a general way.

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CHAPTER 5
CONCLUSION

The teaching of law has moved decisively a way from a teaching-focused system of rote learning tested through examinations to a learning environment in which students are encouraged to assume more responsibility for their own education and in which research tested through coursework assignments plays a more prominent role.45 Law students are now more research-based than ever before, and research is an integral part of the undergraduate curriculum, no longer the preserve of the postgraduate students.46 This means, at the least, that legal research is much more pervasive, complex and demanding than ever before and those engaging in research have more pathways to travel and require a greater range of skills and competences than their law-focused predecessors. But if we go deep into it then we find that the reality is totally different.47 5.1 The Reality

Individual research may be oriented towards solution of the immediate problem, but inherently research is an objective enquiry leading to authoritative explanation. Satisfaction of the queries in a planned manner as a social habit is a luxury of the civilised and free man. A subject-nation cannot afford this intellectual pleasure. Being a subject-people for centuries, Indians lost the habit of enquiry for enquirys sake.48 Education, to the average Indian, has for long been, and still is a tool for earning a living. In a society afflicted with hunger and inferiority complex, education does not imply pure enlightenment, and enquiry does not mean research. It is true that in every nation and at all times education implies utility, but there is a difference of degree. In India, the cashable aspect of education overshadows all else.

45

Mike McConville and Wing Hong Chui, Research Methods for Law, Edinburg University Press, Edinburg, 2007, pp 2. 46 Ibid, pp 3. 47 Ibid, pp 3. 48 S.K.Verma and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2006

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In 2005-2007 Thomson West has conducted five roundtables and countless informal discussions with law firm and academic librarians across the world. 49 These discussions covered a slate of topics confronting the legal profession. None drew as much passion and commentary as the state of legal research and writing. In a survey done by Thomson West, the research skills of law students were tested. According to it: 70% of the law students need help using print and online resources together 75% of the law students needed a librarians job to train researchers. Most of them could not use an index or table of contents or understand key sources for specific practice areas. The quality of research between a first year and a fifth year students of law also varies dramatically. The first year students are ineffective because they generally start with an online keyword search while not understanding the context of the results they have retrieved.50 Since the law is the latest entrant on the educational scene, legal research tradition has been least enviable. In short, the climate for research has been wanting in the country. Above all, research requires an unfettered mind that can dare to be independent and objective. Courage to differ is difficult for any subjugated people.51 In the Indian context it was all the more difficult owing to the educational model introduced by the Britishers, which completely brainwashed the people in favour of the Western intellectual and academic stand. The educational model was also defective in the sense that its end product was a mere storage of information and true education. It was not thought provoking. The research attitude thus did not develop in India. Indian research, whatever it is, is imitative of Western models and non-original; its content is mediocre.52 To recount, the three pre-requisites for legal research are: A good legal education; a politicolegal framework congenial to a critical evaluation of the legal phenomenon; and a tradition of
49

Retrieved From http://west.thomson.com/pdf/librarian/Legal_Research_white_paper.pdf, visited on 3rd November, 2010 50 Retrieved From http://west.thomson.com/pdf/librarian/Legal_Research_white_paper.pdf, visited on 5th November, 2010 51 S.K.Verma and M.Afzal Vani, Legal Research and Methodology, Shivam Offset Press, New Delhi, 2006 52 Ibid

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academic enquiry in the society. It is not surprising that in the absence of these pre-requisites, the tradition of Indian Legal Research could not develop. But still if done in a proper manner and in a planned way then research (apart from its material rewards) offers higher rewards-intellectual and spiritual. It is research that brings to us the awareness that the law is a flowing river, never standing still though it may have the outward appearance of a placid lake.53 Graduate law student have undertaken and continue to undertake, a diverse range of research. Historically this has have been largely doctrinal concerned with the analysis of the legal principle and how had been developed and applied.54 Whether or not there has been a major change in direction in legal research is debatable. Many graduate law students are undertaking quantitative or qualitative research or a combination of two.55 Doctrinal research if qualitative on the basis that such research is a process of selecting and weighing material taking into account authority as well as understanding social context and interpretation .In guiding the graduate student undertaking doctrinal research, we have argued that social science can be referred to so as to get a sense of the objectives of a research methodology. Effective research starts with a thorough knowledge of all research resources, print and online, and a clear understanding of when and how to use each-typically beginning with print and primary and secondary resources, then adding online primary and secondary materials to expand and enhance the search results.56 Research can be used as a tool to extend our knowledge on aspects of law and the operation of the Legal system that are of great interest. Increasingly students are required to engage in research themselves and no longer have their studies confined to textbooks.

53

Attorney Stephen Elias, Legal Research: How to Find and Understand the Law, Delta Printing Press, London, 2008 54 Mike McConville and Wing Hong Chui, Edinburg University Press, Edinburg, 2007, pp 40. 55 Retrieved From http://west.thomson.com/pdf/librarian/Legal_Research_white_paper.pdf, visited on 4th November, 2010 56 Retrieved From http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/call32&div=8&id=&page visited on 2nd November, 2010.

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BIBLIOGRAPHY
1. Verma, S.K. and Afzal Vani, Legal Research Methodology, Shivam Offset Press,

New Delhi, 2006 2. McConville, Mike and Wing Hong Chui, Research Methods in Law, Edinburg

University Press, Edinburg, 2007 3. Kothari, C.R., Research Methodology, New Age International Publishers, New Delhi, 2010 4. Elias, Stephen, How to Find and Understand the Law, Delta Printing Solutions, 2009 5. William, Putman, Legal Research Analysis and Writing, Delmar Cengage Learning, 2007

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