LEGAL RESEARCH METHODOLOGY

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Electronic copy available at: https://ssrn.com/abstract=4788158
LEGAL RESEARCH METHODOLOGY

Dr. Ashish Kumar Srivastava

Assistant Professor,
Faculty of Law, University of Lucknow

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© Dr. Ashish Kumar Srivastava 2024

All rights reserved. No part of this book may be reproduced, stored in

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corrections in the next edition. Submit all inquiries and requests to the
publisher: SATYAM LAW INTERNATIONAL, NEW DELHI, INDIA.

ISBN: XXXXX 9788119119585

Published by : Satyam Law International, 2/13, Ansari Road, Daryaganj,

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 AUTHORS

ABHIJIT B
Abhijit B. graduated from National University of Advanced
Legal Studies (NUALS), Kochi and completed his Masters in
Constitutional and Administrative Law from Gujarat National Law
University (GNLU), Gandhinagar. He worked as a Corporate Lawyer
in Bengaluru. He has been a faculty at Presidency University,
Bengaluru, and Ramaiah College of Law, Bengaluru. He is presently
working as an Assistant Professor of Law at the School of Law,
UPES Dehradun. He is also pursuing his PhD on Affirmative Action
from NLSIU, Bengaluru. Email:abhijit.bnair@gmail.com

AMITESH DESHMUKH
Amitesh Deshmukh completed his B.A., LL.B. (Hons.) and
LL.M. from Hidayatullah National Law University focusing on
constitutional, criminal and corporate laws. While pursuing his
masters in corporate laws, he qualified for JRF award and Assistant
Professor by securing 100 percentiles in the UGC-NET in December
2018. Having a keen interest in business laws, he has done several
courses in Competition Laws and Intellectual Property Rights, and is
currently pursuing his PhD in Comparative Arbitration Law.Prior to
joining HNLU as a faculty, he has worked as Assistant Professor at
NLU, Jodhpur and Amity University, Chhattisgarh. Email: amitesh.
deshmukh@hnlu.ac.in

ANEESHA JOHNY
Aneesha Johny, is a Senior Research Fellow at the National Law
School of Indian University, Bangalore. Her thesis focusses on
comparative regional analysis of the responses of South Asian and
European countries towards Rohingya and Syrian refugees in the
context of the principle of non-Refoulment. The epistemic study
compares and contrast the approaches of developed nations in the

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Legal Research Methodology

Global North and the developing nations in the Global South, in

balancing refugee-state interest dichotomy. During her stint as a
Ph.D. Scholar, she worked with Prof. (Dr.) V. Vijayakumar, former
UNHCR chair professor in teaching international humanitarian law.
As part of her research, she has conducted fieldwork at Rohingya
refugee camp in Tamil Nadu, India, which was later developed into
a book chapter in the book Emerging Dimensions of Human Rights
in the Contemporary Era: National & International Perspectives. In
pursuit of her interest in comparative regional research, she is also
part of the IMISCOE PhD network as a Blog Group member. Before
joining for PhD she worked as a legal researcher at the Juvenile
Justice Team of Centre for Child and the Law at NLSIU. While
pursuing her Masters she was associated with Access to Justice Team
of Commonwealth Human Rights Initiative as an Intern. Soon after
Bachelors in Law she did judicial clerkship with Justice R.M. Lodha,
while he was a Judge of the Supreme Court of India. Her key interest
areas include child rights, refugee law, comparative law and judicial
process. Email:aneeshajohny@alumni.nls.ac.in

ANUSHKA DAKSH
Ms. Anushka Daksh is a third year B.Com LL.B. undergraduate at
University Institute of Legal Studies, Chandigarh University. She
has participated in numerous Moot Court Competitions. She also
has articles published in International Conference on Environmental
Diversity and also Environment Jurisprudence: National and
International Perspective. Her Contact no.: 7818806665&E-mail:
123anushkadaksh@gmail.com

ARJITA VERMA
Arjita Verma, is an Assistant Professor, Faculty of Law, Shri
Jai Narayan PG College, Lucknow.She did LL.B. (Hons.) from
University of Lucknow and LL.M. from Banaras Hindu University.
She is pursuing Ph.D. from the Faculty of Law, University of
Lucknow. Email: arjita999@gmail.com

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 An Introduction to Legal Research Methodology

DR. BALWINDER SINGH

Dr. Balwinder Singh has more than 10 years of teaching and research
experience. He is an Associate Professor, at School of Law, UPES
Dehradun. He is avid writer having a keen interest in contemporary
issues and often publishes papers (Scopus and UGC care), blogs, book
reviews and case comments. He has been associated with few NGOs
that work for the welfare of women and children. His seminal work
has been published in the form of books on - Expanding Horizons
of Article 21 of Indian Constitution: A Critique, Interface between
Science, Technology and Human Rights, Changing Dimensions and
Viability of the Institution of Hindu Joint Family. He has chaired
many technical sessions, being a resource person in various national,
international conferences, workshops and training programs. Email:
balwinderslathia@gmail.com

DR. BISWANATH GUPTA

Dr. Biswanath Gupta is currently working as an Associate
Professor of law at Jindal Global Law School. He earned his
Ph.D. from IIT Kharagpur in 2017. He mostly writes and teaches
international law.

DEEPAYAN MALAVIYA
Deepayan Malaiya is an alumnus of Faculty of Law, University of
Lucknow. He has completed his Masters in Law from Tata Institute
of Social Science, Mumbai. Currently he is serving as Lecturer in
Jindal Global University, Sonipat. During his graduation in law,
he represented University of Lucknow on various national and
international platforms in Moot Courts, Conferences, and Seminars
and brought laurels as the Runner-Up in the prestigious K. K. Luthra
International Moot Court Competition organized by CLC, University
of Delhi. He also served as the Co-Convener of the Moot Court
Committee of the University of Lucknow. He has presented and
published various research papers in various International Seminars
and Conferences. He has several publications on wide ranging legal
issues in both SCOPUS and UGC CARE journals.

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Legal Research Methodology

DEEPU KUMAR
Deepu Kumar is an advocate and a penultimate student of LLM from
the esteemed Faculty of Law at the University of Delhi. Prior to his
LLM, he successfully obtained his LLB degree from the renowned
Law Centre-II, Faculty of Law at the same university. He did his
BA Program in history and political science during his undergraduate
studies at Sri Aurobindo College, University of Delhi.

GARIMA JARGAR
Garima Jargar is an incoming student of LLM (Criminal and Security
Law) from the Institute of Law, Nirma University, Ahmedabad.
Before this, she completed her graduation from MNLU Nagpur.
The author has researched various facets of law and has publications
in National as well as International journals. As a law official, one
should know the importance of researching and the intensive form
of analyzing, observing, and procuring a maximum amount of
knowledge. With a prime interest and aiming for a career in Dispute
Resolution, corporate governance, or as an academician, the author
has gained knowledge and experience by working in several sectors
within the field of legal department. Email:ggarimajargar@gmail.
com

KANU PIRYA
Kanu Priya, is an Assistant Manager at NABARD. She did graduation
in Economics (Hons.)from the Hindu College, Delhi and then pursued
masters in Economics from the Delhi School of Economics (DSE).

DR. MANJIT SINGH

Dr. Manjit Singh is Assistant Professor at Department of Laws,
GuruNanak Dev University, Amritsar. His Research and Teaching
areas are environmental and criminal law. He has 3 years of teaching
experience. He has done his Doctorate on the topic “Working of
Green Tribunal in India”. He has presented various Research papers
in various National and International Seminars and Conferences. He

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 An Introduction to Legal Research Methodology

had published many research papers in International and National

Journals. He has also published various chapters in the edited books.

PRAMOD TIWARI
Pramod Tiwari is an Assistant Professor, Law Centre- II, Faculty of
Law, University of Delhi. He did his LL.B. and LLM from BHU,
PhD from DU. He has been a Civil Judge/Judicial Magistrate at
Assam Judicial services from 2008 to 2009. He has supervised
more than 30 LLM Dissertations. He has published more than 30
research articles. He has chaired and co-chaired many seminars and
congratulations throughout the nation. He has delivered many expert
lectures at various institutions of the country. He has more than 12
years of teaching experience. Email: pramodbhu786@gmail.com

MANAV
Mr. Manav is a third year B.Com. LL.B undergraduate at University
Institute of Legal Studies, Chandigarh University. He has a knack
for research and Moot Courts. He has been an active participant of
various academic competitions with a passion for writing. He has
also successfully participated in a number of National Moot Courts.
Contact no.: 9318377785&E-mail: gejehehshd@gmail.com

DR.MARIA GORETTI SIMOES

Dr. Maria Goretti Simoes is presently an Assistant Professor (Senior
Scale) and Officiating Principal of VVMs Govind Ramnath Kare
Collge of Law, Margao, Goa. She is also the IQAC Coordinator and
has written and published a wide range of articles on several issues
both at the National and International level. Email: simoes.morais@
vvm.edu.in

DR. NAMRATA LUHAR

Dr. Namrata Luhar is an Assistant Professor at Faculty of Law, The
Maharaja Sayajirao University of Baroda, Vadodara with a teaching
experience of about 19 years. She has to her credit six Gold Medals

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Legal Research Methodology

from The Maharaja Sayajirao University of Baroda for obtaining

highest marks in her Bachelor’s and Master’s Degree in Law.
Her areas of specialization have been Business Laws, IPR Laws,
Juvenile Law and Women related laws. She has been a recipient of
“IP Academician of the Year, 2019” Award by Intellectual Property
Protection Organization, Ahmedabad. She was adjudged as the
‘Best Participant’ during One Week Prof. N. R. Madhava Menon
Refresher Course for Law Teachers by National Law School of India
University in 2019. She has published several articles in reputed
International and National Journals and has delivered Expert Talks
at National, State and Regional Levels on different areas of Laws.
She is a recognized Ph.D. Guide and has successfully guided two
Ph.D. Scholars. Presently, four Ph.D. Scholars are working under her
guidance. Email: solanki.namrata-law@msubaroda.ac.in

DR. RAKESH CHANDRA

Dr. Rakesh Chandra is a former civil servant. Has served Government
of U.P. in different capacities. His qualification is MA, LLB,
(Lucknow University), LLM. (Babasaheb Bhimrao Ambedkar,
(Central) University Lucknow. He has authored five books on Law,
namely “Globalization, Environmental Protection & Social Justice:
A Study in Indian Legal Framework”, “Right to Privacy in India
with Reference to Information Technology Era”, “Environmental
Degradation, Water Management and Climate Justice: A Study In
Indian Legal Perspective”, “India’s journey into the Cyber World: A
Legal Study”, “Right To Privacy and Surveillance in the Indian Legal
Perspective.”His more than fifty papers on law have been published
in different National and International law journals. He has been
awarded his Ph.D. (Law) Degree by Lucknow University. Email:
rakeshchandra.81@gmail.com

DR. RANJIT SINGH

Dr. Ranjit Singh is Assistant Professor at Department of Laws, Guru
Nanak Dev University Regional Campus, Gurdaspur. His Research
and Teaching areas are media law and taxation law. He has eight
years of teaching experience. He has done his Doctorate on the topic

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 An Introduction to Legal Research Methodology

“Impact of Media Violence on Youth: A Socio Legal Study with

Special Reference to State of Punjab”. He has presented various
Research papers in various National and International Seminars and
Conferences. He had published many research papers in International
and National Journals. He has also published various chapters in the
edited books. Email: ranjeet.8419@gmail.com

DR. RICHA SAXENA

Dr. Richa Saxena, is an Assistant Professor, Faculty of Law,
University of Lucknow. She did LL.M and Ph.D. from Faculty of
Law, University of Lucknow. She started her academic career as
Faculty for the BA.LL.B Hons. (Five year course), at University
of Allahabad, Allahabad (UP) in the year 2008. She also served as
Lecturer in Law, Patna Law College, Patna University, Patna (Bihar).
Since 2010, she is working as Assistant Professor, Faculty of Law,
and University of Lucknow. She has more than fourteen years of
teaching experience. She has delivered more than forty guest lectures
onvarious legal topics, such as Labour Laws, Women Laws, RTI,
Family Laws, Civil Procedure Code,etc. at institutions like Direct
Tax Regional Training Institute (DTRTI), Lucknow, Indian Railways
Institute of Transport Management (IRITIM), Lucknow etc. More
than eighteen papers have been published by her. She has been
awarded Ph.D on ‘Surrogate Motherhood, Problems and Prospect: A
Legal Study in International Perspective’ in 2017. She has written an
Edited Book “Human Reproduction: Legal Conflicts and Concerns
from Satyam Law International (2021). She did one Minor Research
Project(2022) of R &D Scheme of UP Higher Education, Government
of Utter Pradesh, U.P. Email: richasaxenalu@gmail.com

RITIK GUPTA
Ritik Gupta is has earned LL.B. and LL.M. degrees from Faculty
of Law, University of Delhi, Ritik has also qualified for the UGC
NET exam twice. He wrote his LL.M. dissertation on topic “Justice
Denied: Huge Backlog of Cases and the Role of I.T and A.I as
Modern Correctional Measures.”Currently, he is working as a
Project Assistant for the Research Project “Traditional Wisdom

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Legal Research Methodology

and Indigenous Communities: A Research Study of Traditional

Knowledge of Tribal Groups,” under the aegis of the Ministry of
Tribal Affairs, Government of India.

RITU MALIK
Ms. Ritu Malik is an Assistant Professor in UILS Department of
Law Chandigarh University She Completed LLB as well as LLM
from Kurukshetra University Kurukshetra. She is also author of book
on Recent Judgment. She has written “A Manual of Legal Maxims
and Lexicon of Legal Phrases with Classification of Illustrations.”
She also published many articles in various International journals.
She was also part and partial of so many national and international
conferences and seminars conducted in Chandigarh University and
outside Chandigarh University.E-mail: ritu.e11581@cumail.in

SHAMBHU NATH MISHRA

Shambhu Nath Mishra is an alumnus of Faculty of Law, University
of Lucknow. He has completed his Masters in Law from National
Law University, Jodhpur with specialization in Intellectual Property
Rights. Currently he is pursuing Ph.D. on Artificial Intelligence from
Dr. Ram Manohar Lohia National Law University, Lucknow. During
his graduation in law, he represented University of Lucknow on various
national and international platforms in Moot Courts, Conferences, and
Seminars and brought laurels as the Runner-Up in the prestigious K.
K. Luthra International Moot Court Competition organized by CLC,
University of Delhi. He also served as the Convener of the Moot
Court Committee of the University of Lucknow. He has presented and
published various research papers in various International Seminars
and Conferences. Email: advocatesnmishralko@gmail.com

SHREYA RAWAT
Shreya Rawat is an Assistant Professor at Siddhartha Law College,
Dehradun. She is also pursuing her research at Law College
Dehradun, Uttaranchal University. She was awarded a Gold Medal
in LL.M. at HNBGU. She has cleared UGC NET Exam. She has

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 An Introduction to Legal Research Methodology

several national and international publications to her credit.Email:

advocateshreya11@gmail.com

SHUBHAM SRIVASTAVA
Shubham Srivastava is currently working as an Assistant Professor
of Law at the National University of Study and Research in Law,
Ranchi. He teaches criminal law and has several books and articles to
his credit.Email: shubham.nalsar15@gmail.com

DR. SOMA DAY SARKAR

She is presently engaged as an Assistant Professor at the Department
of Law, University of North Bengal, the author has completed her
B.A.LL.B (Hons.) and LL.M from the Department of Law, University
of North Bengal. In 2018, she was awarded her Ph.D. degree. She is
the Assistant Editor of Indian Journal of Law and Justice and has a
number of articles published in acclaimed national and international
journals. The author can be reached out at deysarkarsoma@nbu.ac.in
somadsarkar45@gmail.com

SUKANYA ACHARYA
Sukanya Acharya is the founder of Juris Emeralds LLP, Advocates
& Solicitors, a full-service law firm, based in Bengaluru in 2021
with international experience in research and advisory, she consults
early-stage entrepreneurs, start-up founders, emerging companies,
incubators and investors and various other businesses. She is trained
in mediation and arbitration and well-equipped to provide savoir-faire
assistance in conflict mitigation and dispute resolution. Currently,
she serves as the Central Government Standing Counsel at the High
Court of Karnataka, Bengaluru Bench and also serves as the Vice-
President of the National CyberSecurity Council, WICCI (a not-
for-profit company). She is a 2012 alumni of Rajiv Gandhi National
University of Law, Patiala, Punjab from where she completed her
LL.M. in Business Laws (Gold Medal awardee with Distinction). She
has been awarded with the Erasmus ICM Plus 2018-19 Fellowship
to pursue academic research in her doctoral studies at the Queen

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Legal Research Methodology

Mary University of London, London. She has authored several

articles and book chapters. She believes in making affordable and
quality legal support and advice available to the disadvantaged and
underprivileged sections of society. Email: sukanya.acharya2020@
gmail.com

VIVEK SHUKLA
Vivek Shukla is practicing as an Advocate at Lucknow High Court.
He has over fifteen years of experience in handling cases related to
Criminal Law, Cyber ​​Law, Consumer Law, IPR, and Family Disputes
etc. Mr. Shukla is also associated with the Legal Literacy and Legal
Awareness Programme, Center for Environmental Law, Education,
Research and Advocacy, National Law School of India University
Bengaluru (CEERA-NLSIU), Department of Justice, Ministry of
Law and Justice, Government of India. He provides professional
services as a Subject Matter Expert in Tata Consultancy Services
Limited (TCS). Mr. Vivek has completed his LL.M (Business
Laws) from the National Law School of India University (NLSIU)
Bengaluru and joined the Law School in the year 2013 as a Research
Assistant at Cyber ​​Law & Forensic Centre. Mr. Shukla was also a
Legal Research Consultant (CIPRA-NLSIU) for the Jharkhand IPR
Project. He served as Assistant Professor of Law at Ramaiah College
of Law, Bengaluru for three years (2015-18). He has written chapters
in three law books. He is distinguished Member of the International
Council of Jurists; Life Member of The Indian Society for Training
& Development (ISTD); Member of the Adhivakta Parishad, Uttar
Pradesh and Advisory and Executive Committee Member of IP Cell,
Cambridge Institute of Technology (CIT) Ranchi, Jharkhand

PROF. (DR.) YOGENDRA KUMAR

SRIVASTAVA
Prof. (Dr.) Yogendra Kumar Srivastava is a seasoned academic,
author, administrator and columnist having a vast experience in
the world of Legal Education, Government Sector and Litigation.
He is currently serving as the Controller of Examination and Dean

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 An Introduction to Legal Research Methodology

of PG Studies at HNLU among other portfolios. He steered many

notable interventions in legal education and is well recognized as
a change leader. Prior to joining the Hidayatullah National Law
University, Raipur he was working as Dean and Director, Faculty
of Law and Dean, Student Welfare at Jagran Lakecity University,
Bhopal. He led two projects namely Tuning India Project Academy
(coordinated by University of Deusto, Spain and co-funded by the
Erasmus+ Programme of the European Union) and Ministry of
Environment, Forest and Climate Change Project on Chemical and
Waste Management (coordinated by the Center for Environmental
Education, Research and Advocacy (CEERA) of National Law
School of India University Bengaluru. During this tenure he organized
International/ National Conferences, Seminars, Refresher Courses,
International/ National Moot Court Competitions, International/
National Debate Competitions, International Alternative Dispute
Resolution Workshop, Training Programmes and many more
academic events having participation from India and abroad. As an
administrator, he successfully led collaborative efforts in academics
and research with reputed international and national universities. His
approach to partner with institutions in the legal education world is
widely appreciated and used as a model.

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Electronic copy available at: https://ssrn.com/abstract=4788158
 PREFACE

Education transforms human life. Research and development bring

panacea for human problems. Research has always helped mankind
to find solutions for problems. Research has improved conditions
of human life sumptuously. Researcher in the able guidance of
experienced people is trained to conduct researches which are
beneficial to mankind. Legal education and research are aimed at
‘dispensation of justice.’ Dispensing justice to people is not an easy
task. It requires incessant research making access to justice easy
and affordable. Legal research like other branches of knowledge
has formal methods of conducting researches. Law schools
and Universities these days are very particular about research,
development and innovation. These institutions are encouraging
research inclination and trying their best to inculcate the value of
research meant to provide solutions for human problems. Institutions
are offering compulsory courses in under graduate and post graduate
programme on ‘Research Methodology.’ In India under University
Grants Commission Ph.D. Regulation ‘course work’ has been made
compulsory for Ph.D.programme.
Legal research has not been in very good shape. UGC
recommended that before taking Ph.D. programmes, research
scholars must be trained in various research tools and techniques
so that research scholars along with their supervisors are able to
submit a good thesis. Research in law is often associated either with
academic research conducted in academic institutions or policy
research conducted either by Law Commission of India or special
commission appointed for this purpose. Many free-lance institutions
have also started providing research contents on payment basis.
Legal research in India has mostly been doctrinal. Doctrinal legal
research (DLR) is often critical, historical, analytical, feminist and
comparative analysis of legal doctrines contained in legal treatises,
commentaries and legislations. The law schools and universities in
pre-liberalization era conducted only doctrinal legal research.
Non-doctrinal legal research (NLR) which is also known as
empirical research methodology is based on analysis of first hand data
gathered by research scholars through questionnaires from a given

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sample in a given research universe. Non-doctrinal researches are

about data analysis applying qualitative legal research or quantitative
legal research or multi-method/hybrid research methodology.
Once an academic researcher takes admission to research
programme, he struggles with his supervisor to formulate his
research proposal. Making a research proposal is not an easy task
which needs countless hours of sorting of legal materials, research
articles, books, commentaries, case laws and legislative texts not
only from municipal jurisdictions but also from various jurisdictions.
Having read the available legal literature on a given subject, the
research scholar starts the literature review and finds a research gap
and pinpoints on research problem. Having done that, he makes his
research design containing statement of problem, hypothesis and
variables. He then choses the correct research method for primary or
secondary data analysis, mode of citation and research limitations.
He also identifies research questions and research objectives. He
lastly makes a tentative chapter plan.
The researcher in the whole process of research feels like being
in high sea without rudder and compass. The training in research
methodology makes his whole research journey smooth and hassle-
free. The canvas of academic legal research has gone a sea change in
last two decades. National law universities and private universities
have changed the whole process of legal researches which has been
equally supported by publications giants and software solutions.
The rankings of academic institutions have compelled the
institutions to take researches very seriously as performance in QS
Ranking, THE Ranking, NIRF Ranking depends on quality and
quantity of researches undertaken and publications made thereon.
National and international accreditations to different councils and
accreditation bodies like NAAC also takes research metrics for
awarding rankings and grades.
After 2000 A.D. academic researches have seen tremendous
change. Publishing giants like Springer, Elsevier, Taylor & Francis,
started mapping footprint of publications in the form of indexed
publications. They started h-index, i-index, g-index and eigen factor
etc. for individual researcher and institutions which shows the
authenticity and impact of published research works by faculty and
research scholars of the institutions.
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 An Introduction to Legal Research Methodology

During the same time ‘Open Access’ journals opened a pandora

box of ‘predatory publications. 500% increase was reported between
2000 to 2010A.D. in open access journal. Directory of open access
journal was made. Jeffery Beall a librarian of California prepared
a list of predatory journals which is being updated till date. Many
technological inventions in the form of computer software disrupted
the whole of process of research. The software like voice access,
voice typing, Google translate, Google form, Google scholar, office
word, office excel, SPSS, R, OCR made the task of typing, converting,
analyzing data easy. QDA, SPSS and R are being used for statistical
data analysis for qualitative or quantitative or mixed researches.
Collection, sorting and creating dataset became very easy as
the Government started making many repositories of data which
contains metadata. ‘Web Scraping’ technique these days are used for
importing data to a local computer for data analysis and to validate
or reject a hypothesis and legal education is not exception to it. Data
from repositories are being extracted for academic researches and
with the help of quantitative and qualitative data analysis software,
the statistical data analysis is being done.
In the meanwhile due to rising number of cases of academic theft
in the form of ‘plagiarism’ UGC made Plagiarism Regulation, 2018.
Due to dwindling values of research ethics, researcher these days are
often resorting to illegal practices to complete their research work.
Researchers are stealing contents of reputed scholars and presenting
it as their own. This problem was countered by a measure of software
which is anti-plagiarism software like Urkund, Turnitin.
UGC started ‘Shodhganga’ portal as a repository of Ph.D. research
works for Indian academic institutions. UGC to counter the problem
of predatory publications brought CARE list of publications so that
quality and authentic publications may be made in reputed journal.
Traditional universities and law schools are suffering with the lack
of research infrastructure. The libraries are curtailing subscription of
reputed research publications. They often lack basic computer and
internet facilities. The purchase of books and materials is not done
on regular basis. The institution lack statistical data analysis facility.
The UGC INFLIBNET service is often found irregular which
provides access to subscription of many academic repositories and

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Legal Research Methodology

databases. This also gives them access to ‘anti-plagiarism’ software

for scanning and finding similarity index.
We are almost witnessing an explosion in academic research and
writings due to advent of ‘Generative Artificial Intelligence’ (GAI).
These linguistic software/platform based on artificial intelligence
has made the content creation magical. Anyone with the help of
GAI/ChatGPT can create a content in a jiffy. Having subscription
to ChatGPT, Research Rabbit, Scisummary like platforms gives a
researcher access to quality contents and helps them in sorting,
downloading and writing research review and literature review
within almost no time. These linguistic software have changed the
whole course of academic researches and in the field of science
has a created ‘fake science.’ Creating research article on platforms
supported by artificial intelligence has become easy and publishing
the same on open access platform has also become easier.
Amidst these settings this work on ‘Legal Research Methodology’
works like bridge between ‘prior art’ and ‘state of the art’. This work
trains the researcher about basics of legal research methodology.
The work contains chapter of various dimensions of legal research.
The chapter on ‘An Introduction to Legal Research Methodology’
apprises the researcher about meaning, definition and types of legal
research, the various methods and steps involved in legal researches.
The Chapter on ‘Importance of Research Design in Research
Methodology: An Analysis’ highlights the idea of good research
design. The research design provides the rudder and compass to help
him to navigate. The proper research design helps the researcher
to hypothesize the research problem and execute the same almost
effortlessly. The chapter entitled as ‘Navigating the Plexus of
Legal Research and its Methodology’explains the types, tools and
techniques of legal research methodology that serve as a guide for
the researchers to navigate through the complex web of conducting
research thereby simplifying the application of the methods, tools
and techniques used in legal research.
The most difficult part of a legal research is ‘formulation of
hypothesis’. The chapter entitled as ‘Hypothesis: Formulation is
Half Research Done’ is again attributed to formulating the research
hypothesis, interlinking it with research questions, research method,

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 An Introduction to Legal Research Methodology

research questions. Research hypothesis keeps the research work

focused and does not let the researcher be stray. The chapter
‘Hypothesis: Significance & Inter-Relation with Research’ details
out the role and importance of research hypothesis. Formulating the
hypothesis in a correct way makes the research work easy. Finding
out the variables for hypothesis is very challenging and it often
influences research findings..
The chapter on Historical Legal Research details out the features
of historical researches in law. History provides foundation for
present and shapes the future. The merits and demerits of historical
legal research is discussed at length in this chapter.
The chapter entitled as ‘Comparative Legal Research: Pros and
Cons’ details out research techniques to bring out the similarities
and dissimilarities of different laws and different laws in different
jurisdictions.
The chapters on ‘Socio-Legal Research’ and ‘Socio-Legal Studies
in Research Methodology’ discuss about socio-legal research and how
the qualitative and quantitative data analysis can provide solutions
for many social problems. The chapter on ‘Feminist Legal Research’
gives an insight to researcher about analysing problems of gender
injustice and suggest the researcher to utilize feminist approach for
elimination of discrimination based on gender.
The chapter entitled as ‘Plagiarism and Copyright Issues in
Research Report: A Legal Perspective’ deals with the issue of
plagiarism and copyright infringement. The author also explains the
inter-linkage between these two. The chapter on ‘The Significance
of Ethics in Legal and Socio-Legal Research’ deals with the issue
of academic integrity and research ethics. Recent cases of academic
theft and dwindling moral values have insisted on good research
ethics. The chapter on ‘Codifying Research Ethics: The Past, The
Present, And the Future of Medical and Legal Research’ deals with
research ethics in Medico-legal researches. With the surge in medical
researches and its interaction with legal knowledge adherence to
research ethics is sine quo non.
The chapter on ‘The Role of Law Libraries and Data Mining in
Legal Research: An Overview’ is very insightful for a researcher
about using a library. Libraries are powerhouse of knowledge.

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Legal Research Methodology

Correct training in the usage of library tools and resources eases the
work of researcher.
The chapter on ‘Participatory and Non-Participatory Research
Techniques in Criminal Law’ details out these research techniques in
criminal law researches. The chapter on ‘Questionnaire & Interview
in Research: Tool & Technique’ highlights the importance of
questionnaire in gathering research data.
The chapter on ‘Digital Tools and Methods in Contemporary
Legal Research: An Overview’ details out software tools and web
portals which can be used for doing sumptuous research work in the
field of law. The chapter on ‘Observation Method: A Potent Tool
of Data Collection in Empirical Research’ provides an insight about
observation method. The chapter entitled as ‘Comparative Study
of Data Mining and Predictive Interpretation of the Techniques:
Evaluating the Uncertainty Application of Database’ details out the
process of data mining and web scraping.
The editor of this work hopes and believes that the work shall
receive a warm response from academic fraternity and work like a
guiding light for researchers of Indian law schools. The author is
deeply indebted to all contributing authors, University of Lucknow
and most importantly to Satyam Law International for bringing out
this work in this form.

Dr. Ashish Kumar Srivastava

Assistant Professor, Faculty of Law,
University of Lucknow
Lucknow, 2023
email: srivastava_ashisk@lkouniv.ac.in, asrinlu@gmail.com

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 Contents

Preface������������������������������������������������������������������������������������������ xvii

Chapter 1 An Introduction to Legal Research Methodology

Pramod Tiwari, Ritik Gupta & Deepu Kumar�������������� 1

Chapter 2 Importance of Research Design In Research Methodology:

An Analysis
Dr. Ranjit Singh & Dr. Manjit Singh��������������������������� 21

Chapter 3 
Navigating The Plexus of Legal Research and Its
Methodology
Sukanya Acharya & Vivek Shukla�������������������������������� 41

Chapter 4 Hypothesis Formulation is Half Research Done

Dr. Richa Saxena��������������������������������������������������������� 65

Chapter 5 Hypothesis: Significance and Inter-Relation with

Research
Shambhu Nath Mishra & Deepayan Malaviya����������� 81

Chapter 6 Historical Legal Research

Dr. Ashish Kumar Srivastava�������������������������������������� 99

Chapter 7 Comparative Legal Research: Pros and Cons

Aneesha Johny����������������������������������������������������������� 112

Chapter 8 Socio-Legal Research

Ritu Malik, Anushka Daksh & Manav���������������������� 133

Chapter 9 Socio-Legal Studies In Research Methodology

Dr. Maria Goretti Simoes ����������������������������������������� 153

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Legal Research Methodology

Chapter 10 Feminist Legal Research

Arjita Verma & Kanu Priya�������������������������������������� 171

Chapter 11 Plagiarism and Copyright Issues in Research Report: A

Legal Perspective
Dr. Namrata Luhar���������������������������������������������������� 187

Chapter 12 The Significance of Ethics in Legal and Socio-Legal

Research
Dr. Rakesh Chandra�������������������������������������������������� 213

Chapter 13 Codifying Research Ethics: The Past, The Present, And

The Future of Medical and Legal Research
Abhijit B�������������������������������������������������������������������� 235

Chapter 14 The Role of Law Libraries and Data Mining In Legal

Research: An Overview
Dr. Soma Dey Sarkar������������������������������������������������ 251

Chapter 15 Participatory and Non-Participatory Research Techniques

in Criminal Law
Shubham Srivastava & Dr. Biswanath Gupta����������� 261

Chapter 16 
Questionnaire & Interview In Research: Tool &
Technique
Dr. Ashish Kumar Srivastava������������������������������������ 277

Chapter 17 
Digital Tools and Methods in Contemporary Legal
Research: An Overview
Amitesh Deshmukh & Prof. (Dr.) Yogendra Kumar
Srivastava������������������������������������������������������������������ 287

Chapter 18 Observation Method: A Potent Tool of Data Collection

in Empirical Research
Dr. Balwinder Singh�������������������������������������������������� 305

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 An Introduction to Legal Research Methodology

Chapter 19 Data Collection and Data Analysis Methods

Shreya Rawat������������������������������������������������������������� 317

Chapter 20 
Comparative Study of Data Mining and Predictive
Interpretation of The Techniques: Evaluating The
Uncertainty Application of Database
Garima Jargar����������������������������������������������������������� 337

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 CHAPTER 6

Historical Legal Research

Dr. Ashish Kumar Srivastava1

ABSTRACT
“Life is beautiful. The pain and pleasure is part and parcel of human
life likewise the problem and solution. The problems in society often
pose serious challenges to mankind. Overcoming challenges is part of
life process. Solutions to human problems are searched by the human
beings only. Research and development, innovation and inventiveness
incessantly strive for finding out solutions for human problems. The
nature and complexity of modern world have made the problems more
challenging. The research only can find panacea for these problems.
Legal problems need quality legal research. Legal research is of two types
i.e. doctrinal and non-doctrinal. In doctrinal legal research, analytical,
historical and comparative research methods are very popular. History
works as a keystone or foundation of every solution and it paves the
way for right solution. One cannot ignore historical foundation of the
subject otherwise his research will not be well-directed and it will
become costly also. History shapes future and provides guidance to the
researcher. Historical legal research and anthropological legal studies
are interconnected. We have seen the support of these researches in
India when Hindu laws were enacted with the help of research work
done by Henry James Sumner Maine a pioneer proponent of Historical
jurisprudence. Historical school of jurisprudence guides us and makes
us learn important lessons about humanity, peace and respect for other
sovereign nations. History also makes us learn the importance of dignity
of individual, rule of law, elimination of racial discrimination etc. The
problems in modern world are very complex so lessons from history in
1 Assistant Professor, Faculty of Law, University of Lucknow, Email: asrinlu@gmail.
com, Srivastava_ashisk@lkouniv.ac.in

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Legal Research Methodology

legal order becomes sine quo non. In this chapter the author is attempting
to define the historical legal research, its meaning, importance and
merits and demerits.”
Keywords L
 egal Research, Doctrinal Legal Research, Historical
Legal Research.

INTRODUCTION
Research is always oriented to find solutions for human problems.
Mankind understands the power of education and research. Education
and research in any field of knowledge have transformative
capabilities. These are tool of empowerment. Research has potential
to change any challenging situation in to an opportunity. Knowledge
is often classified in two types i.e. ‘prior art’2 and ‘state of the art’.
Old existing knowledge and new knowledge. The knowledge always
aspires to provide solutions of human problems.
Legal education and research also aspire to provide panacea
to problems. The problems of modern world have become more
complex. The complexity is added to problems for variety of reasons.
Apart from the old problems many new types of problems are being
added to human life on unprecedented scale. History provides a
chronicle description of human development. History offers a great
learning lesson to mankind. In legal world problems are related to
human affairs and historical evolution of such problems cannot be
ignored while researching the human problems and finding workable
solutions for the same. Henery J. Taylor said, “Imagination lit every
lamp.” Legal research works to find the solution for human problems.
Legal education is incomplete without any legal research.
Research means search of knowledge. Researcher aims to find
solution for problem and in the process makes a systematic study
while collecting and interpreting data and proving and disproving a
hypothesis. George J. Mouly writes that, “Actually research is simply
the process of arriving at dependable solutions to problem through the
planned and systematic collection, analysis and interpretation of data3.”

2 Knowledge that is publicly available.

3 George J. Mouly, The Science of Educational Research (New Delhi, American Book
Company 1964) 4

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 Historical Legal Research

Legal research also reveals unknown facts and provides solution.

It provides, systematic, objective and logical conclusions. It aims
to find out solutions. Researches are an organic continuous process
often based on edifice of prior knowledge. “All researches are
gathering of evidence or information for ascertaining an assumption
of verifying of afresh theory or for supplementing prevailing theories,
by new knowledge. No research can be purely new, as even original
discoveries are an extension of search already undertaking being
shaped generally as expressing agreement or plain addition.”4
Researches use the old research work as a launching vehicle. Law
has to work in society. The ever-changing nature of society compels the
researcher to make a historical study so as to understand the problem
and work for an effective solution. Legal researches are of two types;
Doctrinal Legal Research (DLR) and Non-doctrinal/empirical legal
research (NLR). Doctrinal legal research is a foundational analysis
of facts and doctrines. In doctrinal legal researches the researcher
analyses the legal provisions, legal doctrines, principles etc.
“Doctrinal research, of course, involves analysis of case, arranging,
ordering and systematizing legal propositions and study of legal
institutions, but it does more, it creates law and its major tool (but
law is not only tool) to do so is through legal reasoning or rational
deduction. Even during the period when ‘analytical positivism’ held
its sway and dominant legal philosophy was that judges did not create
law but merely declared it, the truth was that much judicial creativity
was going on.”5
Doctrinal researches are the most popular legal researches in
India. It is an arm-chair type of library based research wherein the
researcher in order to find out solutions of human problems works
on secondary data in cases, legislative provisions, commentaries,
dictionaries, encyclopaedias etc. of municipal and international
jurisdictions.
DLR may be of various types i.e. historical, critical, analytical
and comparative. Historical legal research (HLR) is a very popular
method of conducting legal research. None can deny the importance of
4 Rajkumari Agarwala, ‘Indian Legal Research: An Evolutionary And Perspective Anal-
ysis’, in S.N.Jain (ed.) Legal Research And Methodology (New Delhi, Indian Law
Institute, 1983)
5 S. N. Jain, ‘Doctrinal And Non Doctrinal Legal Research’, 166-187 at 166 in S.N.Jain &
others (ed.) Legal Research And Methodology (New Delhi, Indian Law Institute, 1983)

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Legal Research Methodology

history in exploring any human problems. History of one civilization

can be taken in to account to learn lessons from the past. We often
say, ‘All that is past is prologue.’

Meaning & Scope of Historical Legal Research

History provides an insight to mankind to learn about variety of
human affairs. It is often quoted that, history repeats itself. All human
civilizations were cognizant of the value of history. Historiographers
recorded human history and this art is known as historiography.
History simply is a chronological statements of past and present facts.
E.H. Carr writes, “History is also a continuous process of interaction
between the historians and his facts6.” Allen Nevins says, “History is
an integrated narrative or description of past events or facts written in
a spirit of critical inquiry for the whole truth.”7
History connects present with past and shapes future. R.G.
Collingwood says that the present is actual whereas the past is
necessary and future is possibility. The two abstract elements of
necessary and possibility make up actuality8.
Carter V. Good & Douglas E. Scates9 writes that “If history is
to be more than an almanac or chronicle of the unique events of
past, it has definite obligation to stress functional use of evidence
and possibilities for applying its data to current issues and problems.
History enables communication to grasp their relationship with the
past and to chart on general lines their immediate forward by giving
people a sense of continuity in all their efforts and by chronicling
events of enduring worth, it confers upon them a consciousness of
unity and a feeling of importance of human achievements.”
HLR is a product of historical jurisprudence. Savigny and
Maine are two important proponents of this schools. Cognitivism,
enlightenment and renaissance in seventeenth and eighteenth
centuries collectively fostered the idea of codification of law like
Napoleonic code in Germany which was rejected by Savigny.
The French revolution created a lot of furore and mooted the idea
6 E.H. Carr, What is History? (2nd Ed, Palgrave, 2001) 24
7 Allen Nevins, The Gateway to History (Boston, D.C. Health And Co., 1938) 22-23
8 R.G. Collingwood, The Idea of History (Oxford University Press, 1994) 412-413
9 Carter V. Good & Douglas E. Scates, Method of Research (New York, ACC Publication,
1954) 174

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 Historical Legal Research

of deliberate codification of law. Savigny rejected the idea of

legislation and said that, “Law is a product of internal silently
operating forces10.” The English jurist Maine in his book Ancient
law11 propounded the evolutionary theory of law. He provides the
stepwise evolution of ‘law’ and ‘state’ and says that, “The movement
of progressive societies has hitherto been a movement from status
to contract.” The role of Maine in anthropological studies cannot
be rejected. India is greatest beneficiary of such studies in the
form of Hindu laws. Sir Fredrick Pollock says jurisprudence is
living growth of human society12. The historical evolution of legal
system from primitive to modern world can unravel many mysteries
before mankind. Maine have successfully shown us the impact of
anthropological legal studies. Many legal anthropologists understood
the value of legal ethnography of primitive law and its evolution in
modern world e.g., Malinowski13, Schapera14, Llewellyn & Hoebel15,
Gluckman16, Bohannan17, Gulliver18, and Fallers19. In 1980 around
the legal anthropological studies became very innovative20 and inter-
relationship of indigenous legal system and grafted legal systems
were deeply investigated by legal anthropologists like, Hamnett21,

10 Savigny, System des Heutigen Romischen Rechts (Berlin, 1840) I 14

11 Henry Sumner Maine, Ancient Law (John Murray London, 1861)
12 Sir Fredrick Pollock, Oxford Lectures and Other Discourses (Macmillon & Co., 1890)
159
13 Bronistaw Malinowski, Crime And Custom in Savage Society (Routledge & Kegan
Paul, London, 1926)
14 I. Schapera, A Handbook of Tswana Law and Custom, (Oxford University Press,
London, 1938)
15 K.N Llewellyn and E.A. Hoebel, The Cheyenne Way Conflict And Case Law In Primitive
Jurisprudence, (University of Oklahoma Press, Oklahoma, 1941)
16 Max Gluckman, The Judicial Process among the Barotse of Northern Rhodesia, (The
Free Press, 1955) Max Gluckman, The Ideas in Barotse Jurisprudence (Yale University
Press, 1965)
17 Paul Bohanan, Justice and Judgment Among the Tiv, (Routledge, London, 2018)
18 P. Gulliver, Social Control in an African Society, (Routledge and Kegan Paul, London,
1963).
19 Lloyd A. Fallers, Law Without Precedent: Legal Ideas in Action in the Courts of
Colonial Busoga, (University of Chicago Press, Chicago, 1969)
20 Chris Fuller, ‘Legal Anthropology: Legal Pluralism and Legal Thought’ (1994) vol. 10,
No. 3 Jun., Anthropology Today, 9-12 at 9.
21 I. Hamnett, (ed.) Social Anthropology and Law (Academic Press, London, 1977)

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Legal Research Methodology

Comaroff and Roberts22, Moore23, Rosen24 , Starr and Collier25,

Conley and O’Barr26, Merry27 and Starr28.
The HLR investigates the social, economic, geo-political and
cultural settings of laws and legal systems. The social, cultural,
economic settings of legal and judicial process has always bearing
upon efficiency of laws. Historical studies are rich source of
knowledge containing information of evolution of society, social
institutions, economic activities, cultural settings, education and
rise and fall of civilizations. Thucydides29 understanding the value
of history observes that “History is philosophy teaching through
examples.”
Civilization is not built in a day and history is chronicle of
civilization. History is repository of good and bad experiences of
society. Nietzsche said, “It is dangerous to be an heir because it is
inheritance to centuries of both wisdom and madness of the past30.”

Merits and Demerits of Historical Legal Research

HLR can provide a clear insight about history of lawmaking and
we can conclude that every known human civilizations had codes
like Manusmriti, Roman Table Twelve, and Hammurabi Code etc.
22 J.L. Comaroff, and S. Roberts, Rules and Processes. The Cultural Logic of Dispute in
an African Context, (University of Chicago Press, Chicago, 1981); S. Roberts, ‘Do We
Need An Anthropology Of Law?’ Royal Anth. Inst. News, 25 (April): 4-75. (1978).; S.
Roberts, Order and Dispute: An Introduction to Legal Anthropology, (Penguin, Har-
mondsworth, 1979)
23 S.F. Moore, Law as Process: An Anthropological Approach, (Routledge and Kegan
Paul, London, 1978); S.F. Moore, Social Facts and Fabrications. ‘Customary’ Law on
Kilimanjaro, 1880-1980, (Cambridge University Press, Cambridge, 1986)
24 L. Rosen, The Anthropology of Justice: Law as Culture in Islamic Society, (Cambridge
University Press, Cambridge, 1989)
25 J. Starr, and J. Collier (eds). History and Power in the Study of Law: New Directions in
the Anthropology of Law. (Cornell University Press, Ithaca, 1989)
26 J.M. Conley, and W.M. O’Barr, Rules versus Relationships: The Ethnography of Legal
Discourse, (University of Chicago Press, Chicago, 1990)
27 S.E. Merry, ‘Legal pluralism’, Law and Society Review vol. 22 pp.869-96 (1988); S.E.
Merry, Getting Justice and Getting Even: Legal Consciousness among Working-class
Americans, (University of Chicago Press, Chicago 1990); ‘Anthropology, Law, And
Transnational Processes’ (1992) vol. 2 no.1 Annual Review of Anthropology 357-379
28 J. Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice, (State
University of New York Press, Albany, 1992)
29 W. Kendrik Pritchett (ed.) Dionysius of Halicarnassus: On Thucydides (University of
California, 1975) 72
30 Quoted in Jawaharlal Nehru, Discovery of India (Oxford University Press, 1982) 36

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 Historical Legal Research

HLR plays a crucial role in the study of law and its sources like
legislations, customs, and precedents. History of one jurisdiction is
beneficial for other jurisdiction as one may learn from the mistakes
of others.
There are many merits and demerits of HLR. HLR is time and
cost-effective. Being a doctrinal study it saves a lot of time and
money. ‘Vilhem Aubert’31 rightly remarks that, “Doctrinal legal
research ... has had the practical purpose of providing lawyers, judges
and others with the tools needed to reach decisions on an immense
variety of problems, usually with very limited time at disposal”. At
times it is reported that we have less time at disposal. The historical
experiences of COVID-19 epidemic can be used for legal regulation
of any human affair in any situation of this kind in future.
HLR is study about evolution of problems and corresponding
laws. Administrative law and law of torts are product of historical
evolutions. Judgments of various jurists paved the way of evolution
of law of torts in England. In India writings of S.P. Sathe, I.P. Massey,
M.P. Jain and research work of A.T. Markose paved the way for
evolution of Administrative law. Likewise litigations by M.C. Mehta
and PIL litigations evolved the whole environmental jurisprudence
and legislations in India.
Legal reform is not possible without HLR. Any issue of legal reform
can be traced in history only. Agrarian reform laws like Zamindari
abolitions are found only in historical studies of oppressions inflicted
by landlords on tenants. The study of creation of landlord system
after mutiny in India, illegal ejections, temporary tenancies, illegal
payment of rent and premiums give a holistic perspective on
Zamindari abolition which all culminated in Fundamental rights
case32. Likewise reform in gender justice needs to look the historical
traces of discrimination against women. HLR provides rational
justifications for reform, suggests the problems in implementation of
reforms and sometimes provides important substitutes for bottleneck
situations. By learning from history we can avoid bitter experiences.
Albert Einstein said, “Learn from yesterday, live for today and have
confidence for tomorrow.”
31 Vilhem Aubert, ‘Researches in Sociology of Law’ (1969) The American Behavioural
Scientist 9
32 Keshvanand Bharati v State of Kerala, AIR 1973 SC 1461

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History of social revolutions, freedom movement, decolonisation,

secularism, and emergence of State can make one understand the roots
of modern democratic concepts like rule of law, dignity of individual,
fundamental rights, human rights, separation of powers, federalism,
secular state, democracy, republicanism. If one is exposed to Magna
Carta, 1215; Glorious Revolution, 1688; French Revolution 1789,
American War of Independence1775-1783, Bolshevik Revolution
1924, Indian Freedom Struggle he can relate to basic concepts of
an inclusive egalitarian political order. If one is aware about the
slavery, apartheid, racial discrimination, Caste-based Gender-based
discrimination, issues of colonialism, issues of imperialism, genocide,
holocaust of Jews in Germany, issues of statelessness and problem of
refugee, problems of corruption, commercial and sexual exploitation
of vulnerable then he can understand value the international treaties33.
HLR justifies a law and also works as a touchstone whether the
law justifiable in older times stands on the timeline and remains
justifiable in modern times. The redundancy of laws and repeal of
unnecessary laws can be done with the help of HLR like right now
India is attempting to repeal colonial Indian Penal Code, 1860 with
Bhartiya Nyay Sanhita Bill, 202334. HLR provides lens and vision
to mankind to see the future and in the process equip the mankind
to analyse the proposals and impediments of proposals. HLR helps
people to make correct public opinion. HLR maintains cohesion and
brings uniformity in opinion making process35.
HLR also helps the lawmen to understand the prejudices and
biases in legal and judicial processes. Biases, pre-conceived notions
and dogmas work often antithetical to given solutions of a problem.
While working for efficiency of solutions with the help of HLR these
prejudices can be curtailed and controlled or one can find a way out.
HLR mixed with comparative legal research can help one to learn
from several jurisdictions and take the best out from them like India
33 United Nations Declaration of Human Rights, 1948, Geneva Convention, 1949, Inter-
national Convention on the Elimination of All Forms of Racial Discrimination, 1965,
The United Nations Convention Against Transnational Organized Crime, 2000 , United
Nations Convention Against Corruption, 2005
34 <https://www.livelaw.in/pdf_upload/the-bharatiya-nyaya-sanhita-2023-485731.pdf>
accessed 25 August, 2023.
35 S. N. Jain, ‘Doctrinal And Non Doctrinal Legal research’, 166-187 at 179 in S.N. Jain
& others (ed.) Legal Research And Methodology (New Delhi, Indian Law Institute,
1983)

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 Historical Legal Research

in making its Constitution borrowed several constitutional doctrines

from several countries. A legal historian needs two basic skills; broad
knowledge of materials and critical mind with regard to approaches
to these materials36. Developing a bias-free mind requires reflexive
methodology of interpreting historical facts. This is a dynamic and
dialogic activity to generate and produce knowledge37. Comparative
legal history can give many insights in development of understanding
of contemporary law which is relevant as well. Relevant legal history
is comparative legal history38.
HLR being armchair type of research has several shortcomings.
Ineffective implementation of laws shows the limitations of HLR
and necessitates the use of empirical research studies. HLR is very
limited to provide any help to problems of modern world as the life
process of modern world is very different from the ancient times due
to variety of reasons like dwindling concept of family, emergence of
nucleus family, technological dominance in human life, dwindling
moral values, climate change, etc. Often we have nothing in the
backdrop to analyse and understand as the problem is thrown to
us out of blue. Space exploration programme, cryopreservation,
stem cell innovation, genomic science evolution often has very less
historical facts available in relation to legal regulation. Milsom says,
“The largest difficulty in legal history is precisely that we look at
past evidence in the light of later assumptions about the nature and
working of the legal system39.” Legal historian may also have a very
unilateral and biased perspective on a given subject. Philip Handler
says that, “Lawyers routinely ignore or suppress evidence that does
not assist their case or which is not deemed relevant according to
the conventions of legal argument. This approach may serve the
practicing lawyers, but it is inimical to the writing of the history40.”

36 Marcel Senn, ‘The Methodologies Debates in German Speaking Europe’ in Anthony

Musson and Chantal Strebbings (ed.), Making Legal History: Approaches and Meth-
odologies (Cambridge University Press, 2012), 108-117 at 116
37 Keith Jenkins, Rethinking History, (London, 1991) 66-69
38 Heikki Pihlajamäki, ‘Merging Comparative Law and Legal History,’ (Winter 2018)
vol. 66, No. 4 The American Journal of Comparative Law, 733-750 at 743
39 S.F.C. Milsom, A Natural History of Common Law (Columbia University Press, 2001)
xvi
40 Philip Handler, ‘Legal History’ in Dawn Watkins and Mandy Burton (ed.) Research
Methods in Law (Routledge 2013) 85-99

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Internal & External Legal History

HLR has two aspects internal and external legal history. Internal
legal history is a positivistic study of legal system, laws and legal
institutions. This approach brings authority, diversity and neutrality
but misses the organic evolution of law in society. At the other hand
the external legal history traces law in social settings and its interaction
in society41. We can see that issue of exploitation of vulnerable and
racial discrimination and slavery got the maximum enriching benefit
from external legal history. The internal and external legal history
are inseparable.

Conducting HLR
Paul Pierson in research design based on historical studies suggest
five key components i.e. sequence, timing, context, asymmetry and
change42. Sequencing of facts must be doubt free and one must be
able to connect to the chronology of facts clearly. The second element
of timing becomes important while sequencing the facts as it avoids
confusion and reminds one about the particular time period. The
fact of context removes problem and reminds the reader of facts the
social, political and geographic context. The asymmetry should be
treated with care and changes made should be reported in meticulous
manner.
Conducting HLR with the help of ‘National Archives’ and
private repositories demands untiring effort from the researcher.
Archival studies in the field of constitutional law is of utmost
important for example in India any study of any aspect of any part
of Constitution of India may necessitate a researcher to see the
Government of India Act, 1935, Constituent Assembly Debates
and source constitutions wherefrom the provision was borrowed.
Comparative constitutional studies can provide a lot of solutions to
problems of modern world.
HLR is extensively used by the commissions or committees
formed to study a particular situations in India like Reports of Law

41 David Ibbetson, ‘Historical Research in Law’ in Peter Cane and Mark Tushnet (ed) The
Oxford Handbook of LegalStudies (Oxford University Press, 2003) 866
42 Paul Pierson, Politics in Time, History, Institutions and Social Analysis (Princeton
University Press, 2004)

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Commission of India43, NCRCWC Report, J.S. Verma Committee

Report, Shri Krishna Commission Report, Malimath Committee
Report, Raghvan Committee Report, Santhanam Commission
Report, Kaka Kalelkar Committee Report, Mandal Commission
Report, Rohini Commission Report, Sarkaria Commission, M.M.
Punchi Commission report etc.
HLR has been used extensively in academic writings by Sir
William Holdsworth44, Sir Frederick Pollock45, D.L. Keir46, Denning47,
Maitland48, B.S. Cohn49, P.V. Kane50, P.N. Sen51, Henry Maine52,
M.P. Jain53, Rama Jois54, Duncan Derret55, Granville Austin56, H.M.
Seervai57, M. P. Singh58. Autobiographies of legal luminaries of
43 <https://lawcommissionofindia.nic.in/> accessed 12 September, 2023
44 Sir William Searle Holdsworth, A History of English Law, (Methun & Co. Ltd, 1903)
45 Sir Frederick Pollock and F.W. Maitland, History of English Law Before the Time of
Edward I (2nd edn., The University Press, 1895)
46 D.L. Keir, The Constitutional History of Modern Britain 1485-1937 (A and C Black,
1938)
47 Alfred Thompson Denning, The Discipline of Law, (Oxford University Press, 2007);
Alfred Thompson Denning, The Changing Law (Universal Law Publishing Co., 2012)
48 Sir Frederick Pollock and F.W. Maitland, History of English Law Before the Time of
Edward I (2nd edn., The University Press, 1895)
49 B.S. Cohn, ‘Law and the colonial state in India’ in J. Starr and J. Collier (eds), History
and Power in the Study of Law: New Directions in the Anthropology of Law (Cornell
University Press, Ithaca, 1989)
50 P.V. Kane, History of Dharmasastra (I-VIII Vols, Bhandarkar Oriental Research
Institute, 2006)
51 P.N. Sen, Tagore Law Lectures: The General Principles of Hindu Jurisprudence
(Allahabad Law Agency, 1984)
52 Sir Henry Sumner James Maine, Ancient Law, (Cosimo Classics, 2005)
53 M.P. Jain, Outlines of Indian and Constitutional Legal History, (LexisNexis, 2022)
54 M. Rama Jois, Seeds of Modern Public Law in Ancient Indian Jurisprudence
and Human Rights: Bhartiya Values (Eastern Book Company, 2000); M. Rama
Jois, Legal and Constitutional History of India: Ancient Legal, Judicial and-
Constitutional System, (Universal Law Publishing Co., 2001); M. Rama Jois,
Ancient Indian Law: Eternal Values in Manusmriti (Universal Law Publishing
Co., 2002)
55 J.D.M. Derret, Essays in Classical and Modern Hindu Law (Universal Book Traders,
1978); J.D.M. Derret, An Introduction to Legal Systems (Universal Law Publishing
Co., 1999); J.D. M. Derret, Religion Law and State in India, (Oxford University Press,
1999)
56 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University
Press, 2012); Granville Austin, Working a Democratic Constitution (Oxford University
Press, 1999)
57 H.M. Seervai, Partition of India, Legend and Reality (2nd edn. Universal Book Traders,
1994) 212
58 M.P. Singh, Outlines of Indian Legal and Constitutional History (Universal Publishing
House, 2006)

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M.C. Chagla59, J. H.R. Khanna60, M.C. Setalvad61, Fali Nariman62,

J. Hidayatullah63 Ram Jethmalani64 also provide great HLR insight
in the realm of law. The phenomenal works of Nani Palkhivala65,
Justice V.R. Krishna Iyer66, H.M. Seervai67, D.D. Basu68, Gadbois69
and V. Sudhish Pai70 is a valuable assets for scholars of HLR.
In a classic work of ‘Fifty Years of Supreme Court of India’ all
erudite and learned authors of India have discussed and deliberated
upon the evolution of law in diverse fields of law. This is an
analytical study of the development and interpretation of the law
by the Court through its judgment in various areas71. In recent
times Oliver Mendelsohn’s72 work unravels the historical roots of
Indian legal system in rural and urban India. It traces the roots of
law from colonial to post-colonial India and history of Indian legal
profession. Marc Galanter also makes a historical study of Indian
legal system in his work73. In the work in a chapter entitled as ‘The
Displacement of Traditional Law in Modern India’74 he makes a
59 M.C. Chagla, Roses in December: An Autobiography (Bhartiya Vidya Bhawan, 1974)
60 Hans Raj Khanna, Neither Roses Nor Thorns, (EBC, 2010)
61 M.C. Setalvad, My Life Law and Other Things,(Universal Law Publishing Co., 2014)
62 Fali S. Nariman, Before Memory Fades (Hay House India, 2010)
63 M. Hidayatullah, My Own Boswell (Universal Law Publishing Co., 2005)
64 Ram Jethmalani, Maverick Unchanged, Unrepentant (Rainlight Rupa, 2014)
65 Nani A. Palkhivala, We The People, (UBS Publishers & Distributors Ltd., 1999); Nani A.
Palkhivala, We The Nations: The Lost Decades (UBS Publishers & Distributors Ltd., 1999);
Nani A. Palkhivala, Our Constitution Defaced and Defiled (Macmillan Co. of India, 1974).
66 V.R. Krishna Iyer, Processual Justice to The People, (Universal Law Publishing Co.
2015); V.R. Krishna Iyer Human Rights & Inhuman Wrongs, (South Asia Books, 1990);
V.R. Krishna Iyer, The Dialectics & Dynamics ofHuman Rights in India: Yesterday,
Today, and Tomorrow (Eastern Law House, 1999)
67 H.M. Seervai, The Seervai Legacy (Law & Justice Publishing Co, 2021); H. M. Seervai,
Constitutional Law of India (3 Vols, Universal Law Publishing Co. 2015)
68 D.D. Basu, Shorter Constitution of India, (2 Vol. LexisNexis, 2017)
69 George H. Gadbois, Judges of the Supreme Court of India, 1950-1989 (Oxford
University Press, 2011)
70 V. Sudhish Pai, Legends in Law: Our Great Forbears (Universal Law Publishing Co.
2013); V. Sudhish Pai, (ed.) The Judicial World of a Multi-Splendoured Genius: Sir
Ashutosh Mookerjee (Universal Law Publishing Co. 2014).
71 S.K. Verma & Kusum, Fifty Years of Supreme Court of India Its Grasp and Reach,
(Oxford University Press, 2000)
72 Oliver Mendelsohn, Law and Social Transformation in India (Oxford University Press, 2014)
73 Marc Galanter, Competing Equalities: Law and the Backward Classes in India, (Berke-
ley, University of California Press, 1984); Marc Galanter, Law and Society in Modern
India, (Oxford University Press, 2008)
74 Marc Galanter, Law and Society in Modern India, (Oxford University Press, 2008) 15

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 Historical Legal Research

wonderful survey about history of modern Indian legal system.

Rohit De75 in his wonderful archival study of Constitution picks
four topics i.e., prohibition regime of state, commodity/economic
controls, prohibition of cow slaughter and prohibition of prostitution.
He makes a historical survey in archives of Supreme Court of India
of the cases on these topics in Nehruvian period during 1947-1964.
He concludes how writ petition litigations made Indian constitution
People’s Constitution.
Originalism which is a theory of constitutional interpretation uses
HLR for interpretation of constitution liberally. In this whole process
the historical exploration of settings of making of constitution comes
very handy. In India in number of judgments ‘Constituent Assembly
Debates’ have been used liberally e.g., A.K. Gopalan v. State of
Madras76, Keshvanand Bharathi v. State of Kerala77, Kameshwar
Singh v. State of Bihar78, M. Ismail Faruqi v Union of India79, Aruna
Roy v Union of India80, TMA Pai Foundation v State of Karnataka81,
Union of India v. Naveen Jindal82, Kuldip Nayar v. Union of India83,
Raja Ram Pal v Hon’ble Speaker Lok Sabha84, SCARA v. Union
of India85, Shivraj Singh Chouhan v. Speaker Madhya Pradesh
Legislative Assembly86.

CONCLUSION
HLR is one of the most important research methodology deployed in
legal researches. History connects present with past and shapes future.
Legal remedy for any malady will be incomplete without tracing
historical roots. HLR can contribute a lot in variety of branches of
75 Rohit De, A People’s Constitution, (Princeton University Press, 2018)
76 AIR 1950 SC 27
77 AIR 1973 SC 1461
78 AIR 1951 Pat 91
79 AIR 1995 SC 605
80 (2002) 7 SCC 368
81 (2002) 8 SCC 481
82 (2004) 2 SCC 510
83 (2006) 7 SCC 1
84 (2007) 3 SCC 184
85 (2016) 5 SCC 1
86 (2020) 17 SCC 1

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laws. Social problems have deep settings in society. Understanding

those problems with a historical lens gives us relevant knowledge to
deal with the problems. Merger of comparative legal research with
historical legal research can contribute a lot this realm.

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