Doctrinal Research Approach

Research Methodology
• Research Gaps [ Part of Review of Literature] – As a continuation before moving
to Methodology
• Aim
• Objectives
• Research Questions
• Hypothesis
• Methods
• Data Collection
• Tools of Data Collection
• Data Collection Procedure
• Data Analysis
Aim and Objectives and Research Questions
• Overarching goal or the general purpose of the dissertation -
Aim
• Objectives are specific statements on key ideas and essential
features of the dissertation
• Exercise
• Research Questions: Original, relevant, clear, and researchable
• Exercise
Research Questions and Hypothesis
• It is an informed hunch – sources , literature review or prior work
• Guided focus on the research questions and its aspects
• Sharpens the research question further
• Helps in chapterisation
• Not all dissertations would need a hypothesis
• The idea of dependent and independent variable
• Hypotheses can be tested and validated [[More while writing dissertation]
• Helps in theory building
• The example of E=mc2
• Attributes of a ‘good’ hypothesis
• Examples
Conceptualising
Methodology
• ‘[H]ow to think’ a dissertation
[methodology] ‘how to think about
a dissertation [method]’
• “Methodology thus influences the
thesis – i.e., the hypothesis, research
questions and method – which in
turn directly influences the critical
discussion, the sources that will be
used, the argument and the structure
of a project”.
•

Alternative Methodologies: Learning Critique as a Skill, Bal

Sokhi-Bulley [2013]
How to decide on a Methodology?
• Is it a personal choice or a process that we follow?
• Driven by research questions and hypothesis
• Training
Conceptualising Doctrinal Research
• Doctrine (Doctrina Latin ) includes legal concepts and principles
[coming out of cases, statutes, and rules]
• “…Doctrinal research, at its best, involves rigorous analysis and
creative synthesis, the making of connections between seemingly
disparate doctrinal strands, and the challenge of extracting general
principles from an inchoate mass of primary materials. The very
notion of ‘legal reasoning’ is a subtle and sophisticated jurisprudential
concept, a unique blend of deduction and induction, that has engaged
legal scholars for generations, …” [Council of Australian Law Deans,
CALD Statement on the Nature of Research (May and October 2005) ]
Conceptualising Doctrinal Research
“…Research which provides a systematic exposition of the rules
governing a particular legal category, analyses the relationship between
rules, explains areas of difficulty and, perhaps, predicts future
developments.’’[Dennis Pearce, Enid Campbell and Don Harding
(‘Pearce Committee’) 1987]

• Legal doctrine and its study as a hermeneutic discipline, because of the

process interpretating text, document, and interpretative process (Mark
Van Hoecke, 2011)
Conceptualising Doctrinal Research (The
Hermeneutic Circle)
• https://www.youtube.com/watch?v=zIEzc__BBxs
• The idea of interpretation
• The idea of whole vis-à-vis parts of a sentence or text
• Context determining meanings
• Whether you have rightly interpretated? - From a point of
methodology
What do we do as part of Doctrinal Legal
Research?
• Is and Ought Research? – State-of-the-art and following justificatory
arguments
• Deductive [ general to specific] and Inductive Methods of Reasoning
[Specific to general]
• “A prominent attribute of DLR is that it employs the inductive method
of reasoning. Building a theory on facts and law in the mass of case
law and primary materials, and by evolving certain propositions, is a
task that is assisted by inductive logic”. [ Ideas and Methods of Legal
Research, P. Ishwara Bhat, 2019]
What do we do as part of Doctrinal Legal
Research?
• Descriptive
• Capturing the subtleness of law amongst huge of cases and application of legal
rules
• Brings uniformity and coherence
• Prescriptive
• Providing practical solution
• Outcome based
• Justifying through a validation process within the system
General steps that we follow
• Data assembling that relevant to research questions
• The legal issues to be addressed are identified subsequently
• Analysing the issues with the objective of identifying a common thread
connecting the issues and the law
• Reading literature
• Locating primary material
• Connecting all given materials and synthesising all the issues in
context of the research questions
• Coming to a conclusion/way forward.
Choice of Sources and Problems
• It is not just about studying literature, judgements and other sources
• Necessary to write down the process
• Critique – No point in adding methodology because there is no data collection
but no data analysis (Paul Chynoweth, 2008)
• The phases in the process of answering the research question/s
• Locating those sources that are relevant
• Selecting sources
• The quality of sources and their interpretation
• The act of synthesizing the sources, so that read as a whole
• Adding validity – from findings from literature to primary empirical work
Choice of Sources and Problems
• Infinite set of data
• Nature of sources
• A needle in the haystack problem – what you want to find and what you have
found
• Finding seminal literature
• The quantity v quality argument regarding the number of sources - how long
do we go back in time?
• Choice of databases
• Dictated searches – software decides – methods
• Keywords searching - words in different contexts
Choice of Sources and Problems
• The international aspect
• The countries to be considered
• The sources to be considered
• Existing resources – databases and others
• Applicability and issues like language barriers and
• Reliability of foreign sources
• Methods and methodology of comparative law
• Transposing an argument
• Sources that one should consult and discard
Interpretation and Synthesis Challenges
• Ambiguity present in cases and legislation – objectivity in
interpretation – looking for an intelligible way
• Level of criticality – prevailing view – checking prior research [
example of the first evaluation report]
• Conscious or unconscious selective behaviour – looking for other
sources and remove the bias
• Validating level of engagement with different sources – testing worth
of sources
• Selecting of case laws
Choice of Sources and Problems
• Unpacking doctrinal method in the context of other methods
• Similar problems in other methods would be:
• Size of the sample,
• Targeted population,
• Research ethics clearance,
• Whom to interview?
• How to interview?
• The idea of consent
Tools after the sources
• Conceptual, Evaluative and Explanatory
• Inductive and Deductive Logic and Analogy [similar situations, similar cases,
same principle, similar outcomes]
• Bringing clear rationales to the forefront
• Use of Internal Approach [Perspective of an insider] and external approach
• Literature review as a help
• Building on the research questions
• Sources and databases
• Keywords
• Screening stage 1 – connected to the questions
• Screening stage 2 – reading, analysing and linking
• Review and synthesis
Observations
• Many choices to make in a systematic manner
• Choice of literature and not through a random choice
• Set techniques to navigate through sources and concluding in a
scientific way
• Setting up an arrangement that brings coherence in process of
answering the research questions
Some criticisms
• Too one sided
• Too narrow
• Less reliance on numbers
• Less connection with other disciplines
General Sources
• Source-usage within doctrinal legal inquiry: choices, problems,
and challenges, Mr. Marnix Vincent Roderick Snel [ 2014]
• Defining and Describing what we do: Doctrinal Legal Research ,
Terry Hutchinson and Nigel Duncan [2012]
• Ideas and Methods of Legal Research, P. Ishwara Bhat [2019]
• What is legal doctrine? On the aims and methods of legal
dogmatic research, Jan M. Smits [2015]
• Writing Law Dissertations, Michael Salter and Julie Mason
[2007]
Comparative Legal Research
A primer
• Why do we compare?
• What is the goal?
• Knowledge about other jurisdictions and identifying own jurisdiction
• Phases of Comparison – Knowing , understanding and comparing
• Searching for a better law and providing solution
• As a method for legal research
What do we do as part of comparative
approach?
• “Comparative law involves drawing explicit comparisons, and most
non-comparative foreign law writing could be strengthened by being
made explicitly comparative” [John C. Reitz, 1998 ]
• Not merely a description of foreign law but explicit comparison
• Cannot leave the interpretation to the audience
• Similarities and Dissimilarities to be drawn to guide the audience
• The explicit reason - why compare?
What do we do as part of comparative
approach?
“The comparative method consists in focusing careful attention on
the similarities and differences among the legal systems being
compared, but in assessing the significance of differences the
comparatist needs to take account of the possibility of functional
equivalence”. [John C. Reitz, 1998 ]
What are we comparing?
The idea of functional equivalency – Rights of an author and
sweat of the brow – The room to manoeuvre example in copyright
– leading to Tertium comparationis
What do we do as part of comparative
approach?
• “The process of comparison is particularly suited to lead to
conclusions about (a) distinctive characteristics of each
individual legal system and/or (b) commonalities concerning how
law deals with the particular subject under study”. [John C. Reitz,
1998 ]
• Providing a normative argument with comparison
• Others are doing therefore, I am [ example of the report on Data
Protection in India]
• Reason for domestic reform
What do we do as part of comparative
approach?
“One of the benefits of comparative analysis is its tendency to
push the analysis to broader levels of abstraction through its
investigation into functional equivalence”. [John C. Reitz, 1998 ]
Accommodating differences through broader constructs
How originality is handled in different jurisdictions?
What do we do as part of comparative
approach?
“The comparative method has the potential to lead to even more
interesting analysis by inviting the comparatist to give reasons for
the similarities and differences among legal systems or to analyze
their significance for the cultures under study”. [John C. Reitz,
1998 ]
Why similarities and differences exist?
The broader issues that may take refuge in other disciplines
How to proceed?
• Selecting the countries
• The formal legal reasoning – the source of law and how a legal question
would be addressed
• The quality of sources
• The gaps between the law on the books and law in action
• The gaps in knowledge – access to information
• The sources to rely upon – linguistic skills, primary or secondary
material, translated work
• Structuring the work
• Adopt a cautious approach while critiquing
How to proceed?
• Descriptive method – Macro comparison, legal institutions and
legal arrangements to compare legal rules
• Factual, functional or problem- solving method - how law in
various countries tackles the same issue – micro comparison
• Conceptual comparison - translating a legal text correctly into
another language
• Deep level comparison – law, legal practice and general culture
Observations
• Comparative Work as a discipline
• Comparative method as a tool
• Comparative approach as a support to doctrinal method
• Comparative method on its own
General Sources
• How to Do Comparative Law Author(s): John C. Reitz, 1998
• Functions of comparative law and practical methodology of comparing: Or
how the goal determines the road! by prof.dr. Danny PIETERS
• Comparative Law as method and the method of comparative law, Jaap
Hage (2014)
• Jan M Smits (ed.) Elgar Encyclopedia of Comparative Law, Cheltenham,
UK: Edward Elgar