COURSE – LEGAL RESEARCH METHODS

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CHAPTER FOUR
MODELS OF LEGAL RESEARCH AND ITS CURRENT TRENDS
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Instructor
Khadar Mohamed Diirie (Ducoqabe)
Introduction to Models of Legal Research
▪ Legal research, like any other research, invariably involves
collecting and analyzing facts and their interpretation.
o To ascertain or refute existing information or add new
information.
▪ Inquiry into a legal fact, thus, either supplements the existing
theory/information or supplants it with a new one.
▪ A legal researcher, depending upon the focal theme and research
goals of his inquiry, resorts to research tools and techniques
and follows a paradigm that differs from others.
▪ A few prominent paradigms or models of legal research, in brief,
along with their utility, are outlined here in this chapter.
Models of Legal Research
Models of Legal Research
1. Evolutive and Evaluative Studies
2. Identificatory and Impact Studies
3. Projective and Predictive Studies
4. Collative Studies
5. Historical Studies
6. Comparative Studies
1. Evolutive and Evaluative Studies
▪ Legal research gets the label of ‘evolutive model of
legal research’ when a researcher endeavors to find out
how a legal fact, rule, concept, institution, or the
legal system itself come to be what it is today.
▪ S/he attempts to trace the origin and development of
a legal fact or institution.
▪ Such legal research can also be undertaken even to
trace the development of a given law, like the
development of the constitutional law of a country.
Conti….. 1. Evolutive and Evaluative Studies
▪ In this model, the legal researcher ▪ The evaluative model of legal
can do this in either of the two research aims at expounding the
ways. logical coherence of concepts,
▪ First, s/he may prepare a calendar elements, facts, and interests of
of the successive formal dates of legal phenomenon individually
the legal fact in question. of their relationship inter se
(between or among) and their
▪ Secondly, s/he may trace the relationship with the concepts,
evolution of a legal fact or an elements, facts, and interests
institution by locating various outside the legal system for
supportive and causal determining and defining the
phenomena, events, or factors terms and presuppositions used
that were responsible for shaping in law.
the growth of a legal fact or an
institution under study.
2. Identificatory and Impact Studies
▪ Almost every law, other than procedural ▪ To be more precise, he seeks to
law, has certain ‘legislative goal(s)’ to answer the question – of which
attain, and ‘legislative targets’ to parties expected or intended to
handle through ‘law’. benefit from a given rule, concept,
▪A legal researcher, through institution, or system of law.
identificatory legal research, seeks to ▪ It further helps to ascertain whether
ascertain the ‘beneficiaries’ of a the intended beneficiaries are being
particular law or legal provision. benefited or not.
▪ His/her interest is to find out the ▪ An identificatory legal research serves
persons (or group of persons) for to assess the utility of the law or a
whose benefit the identified law (or legal legal fact under inquiry.
fact) is made to exist. ▪ For example conducting research on
the laws relating to domestic violence,
child abuse, harmful traditional
practices, or public service provision.
3. Projective and Predictive Studies
▪ A legal researcher generally uses ▪ Predictive legal studies are used when
projective model of legal research a legal researcher intends to
when s/he wants to anticipate and anticipate and highlight possible
highlight the effects of a draft misuse of the proposed law or legal
legislation or a proposed legal measure.
measure. ▪ Such legal research helps the
▪ Such a legal research is mainly lawmakers to minimize or to do away
attitudinal, intended to anticipate the with the possible undesirable
probable response in terms of rejection consequences of the proposed
or acceptance of a proposed measure. measure.
▪ Its purpose is to identify the parties ▪ Predictive legal studies are generally
who stand for and against the carried out by Law Commissions,
proposed law or legal measure and to Parliamentary Committees, or Joint
locate determinant variables and Select Committees, invariably, before a
situations for peoples’ apathy or proposed legal measure takes formal
sympathy. shape and becomes operational.
4. Collative Studies
▪ When a legal researcher prepares a digest of laws, statutory provisions,
judicial pronouncements, or annotated bibliography on a particular
topic or subject, that research gets the label of collative legal research.
▪ Here the legal researcher collects all the relevant materials, with or
without its summary, on a given topic and arranges/classifies them
logically.
▪ Properly collated legal material, which is reliable, reasonably
extensive, and classified logically, is as much contribution to legal
writing as any other material.
▪ A well-collated material will serve a useful purpose by reducing the
labor of researchers.
▪ It offers reliable versions of the law.
▪ Collative material has its own value and collative research is an end in itself.
5. Historical Studies
▪ In historical legal research, a legal researcher intends to trace
historical antecedents of a legal fact.
▪ Tracing the history of a particular legal fact becomes significant
for its following attributes.
▪ First, in such circumstances, it gives a significant clue to the
reasons why it (the particular law or legal provision) was framed
in the form in which now it appears.
▪ It helps to remove certain doubts about the legal facts.
▪ Secondly, it supplies the researcher with the reasons that
justify the present position because the reasons and the
circumstances that justified its inclusion are no longer valid
or exist.
Conti…… Historical Studies
▪ Thirdly, it discloses the alternatives, different than the currently adopted
ones, which were considered and rejected by the lawmakers and the reasons
therefor.
o In this way, it initiates or contributes to legal reforms.
▪ Fourthly, the history of a legal fact, when traced deeply and arranged
logically, shows the gradual evolution of the law or legal fact on certain
lines, and thereby of a general trend of its change.
o It shows the way the legal fact is evolved.
▪ Fifthly, the historical background of law enables lawmakers to know the
principles used or followed by the Legislature from home or abroad in
earlier identical law(s).
▪ Sixthly, a law may have a relevant international background when it is
enacted to give effect to the treaty obligations accepted by the
government towards other countries.
6. Comparative Studies
▪ When asked why compare, some scholars saw comparative law mainly as
an instrument for improving domestic law and legal doctrine.
▪ Researchers get easily lost when embarking on comparative legal research.
▪ The main reason being that there is no agreement on the kind of
methodology to be followed.
▪ In comparative legal studies, the researcher should consider the following
aspects:
o Why compare?
o Choice of legal systems to be compared.
o What has to be compared?
o How does one compare?
o Levels of comparison.
Current Trends in Legal Research
1. Mono-disciplinary Legal Research
▪ Legal research, depending upon its objectives and the nature
of inquiry, may be mono-disciplinary or trans-disciplinary.
▪ Based on mono-disciplinary legal analysis, researchers have
been coming up with some tentative explanations of law
and its principles, predicting the future course of
development of law, hinting at the problems that may
likely arise in the future, and suggesting a way out.
▪ This type of legal research is characterized as ‘mono-
disciplinary legal research’ as the discipline involved is only
one, i.e. ‘law’.
▪ All doctrinal legal researches fall into this category.
2.Trans-disciplinary Legal Research
▪ In the recent past, however, some new ▪ Each legal rule, in the ultimate analysis,
trends, away from mono-disciplinary legal intends to apply and govern a factual
research, have emerged in the domain of situation of life.
law. ▪ All disciplines that are connected with
▪ An inquiry into a legal fact transgresses this factual situation of life, therefore,
the discipline of ‘law’ and touches upon have nexus with ‘law’.
the disciplines ‘related’ to law. o For example; History, philosophy,
▪ Such legal research, to distinguish it from sociology, psychology, and religion,
the former one, may be labeled as trans- to mention a few, are thus related
disciplinary legal research. with ‘law’.
▪ It is worth recalling here that law does ▪ Socio-legal research generally falls
not operate in a vacuum. into the category of trans-disciplinary
▪ It operates in a complex social setting. legal research.
▪ It has certain roles to play in a society.
3. Inter-disciplinary Legal Research
▪ In this type of legal research, scholars from different disciplines may join
hands in inquiring into a legal fact.
▪ It is the research done by a legal scholar in close association with scholars
from other disciplines related to law, such as sociology, anthropology,
political science, history, philosophy, psychology, and economics.
▪ It is a sort of concerted or cooperative effort by several scholars belonging
to different disciplines to integrate their disciplinary insights, and to apply
integrated insight to the study of legal problems.
▪ An inter-disciplinary legal research, compared to mono-disciplinary and
quasi-disciplinary legal research, leads to better insight into the legal fact
under investigation.
▪ It also results in offering more sound and sophisticated solutions to
problems that can be suggested with the aid of mono-disciplinary and quasi-
disciplinary legal research.
THE END