LEGAL RESEARCH AND LAW REFORM

P.M. Bnks h i *

Introductory

LAW REFORM-official aiid non-official-comprises several components

and involves a variety of activities. Research in law is an important
component of the process of law refoml. Moreover, it is an essential
preliminary to all other components.
The nature aiid quality of research to be undertaken will. of course,
depend on several factors. To give a few instances, these factors include:
( a ) the character and status of the institution undertaking the
project of law reform;
( h ) the subject matter of the project;
( c . ) the time allowed for completion of the project; and
( d ) several other variables.
However, certain features would be common to most prqjects of law
reform, so far as research is concerned.

Research as a tool of law reform

Before going into these factors, it may be worthwhile to mention that

the function of legal research in law reform is somewhat different from
its function in general. Research for the purpose of writing a book or
preparing a thesis or an article has no other objective except an exploration
in depth of the position on the particular topic of research. Its principal
end is the arriving at certain conclusions on the relevant aspects of the
subject. Proposals for reform are, no doubt, occasionally found at the
end of the study paper, but they would not be the sole objective of the
research. One can even describe these proposals as a bye-product of the
research undertaken. In contrast, when research is undertaken as a part
of the process of law reform, it is undertaken with a definite end,
namely, making suggestions for improvements in the law on concrete
and easlly identifiable matters aiid the formulation of those proposals in
precise terms. This approach is to be kept in mind throughout the

* Formerly Member-Secretary, Law Commission of India; Hon Dircctor. Indian

L a w Institute (1991-94).
 112 LEGAL RESEARCH AND METHODOLOG)'

e!-0cess; at no sta~i! is to ~Jo~t ,S.W1Lof; and ate\::t.~ stage it is, t~e

major governing factor. Because of this consideration. certain [imitations,
may-creep iit-antl""tne guantl!~~fresearc~ that can be l!n.c!e.!~a,k.:Jl; and
again because of this -consideration. the research may. fr~m _~I~e very
beginning have to be moulded in a particular direction.
,=- Coming now tothetool~-~'f law refonn:;'esearch 'i's one essential tQol
for an ro'ect oL!~....r~{Qmi.Tlie major portion of legal r arch.for
t e u ose o~aw re orm is ofthree categories ana ytica. jstorical
])and co ar . The I ,W' t. the I w is . the
seco d with Its !!!!QJ a . aJl(Lt~ ,ithJh.~
. .~blc
position 10 0 er countries. e amount of time and energy to be divided
'between the three depen3s'on the nature of the subject and the status and
quality of available official. academic and other material. Besides these.
there are a few other categories of research which will be mentioned
presently.
Research on any topic can. in point of quantity. be limitless. as every
researcher Knows. or at least comes to realise sooner or later-sometimes
to his cost. Money. time and manpower set the limits. It would be a wise
course to map out the total area that is covered by the subject in hand.
to divide it into segments and to distribute the resources amongst the
various segments so that each aspect of the subject receives. as far as
possible. adequate attention and no part thereof receives disproportionate
attention.
Published materials on legal writing and research. while presenting
much excellent guidance on the sources of law. do not adequately
recognise the importance of the underlying process of research analysis,
Some time ago it was observed: "we know too little about the styles and
structures of legal research strategies".'
In an era of information explosion. one of the most serious problems
for doing research is to find enough time to search and to digest
voluminous materials. But often the reverse is the case. and the researcher
faces the more frustrating problem of lack of sufficient information of
research materials concerning legal development is certain countries or
on certain topics.
To a certain extent. the methods to be adopted for research depend
on the agency under whose auspices it is to be conducted. If the agency
which examines a proposal, fur law reform is a purely departmental
~lfI!llmee appoliif@-glnWc, its approach -w.QUkfbe"aITfer~lt. I~.ca~
meet frequently but its outlook might be coloured by the departmental
a
point of vlew:;:Jija iliis will have rafectlo~ of the methods alSQ."U'iillle
oth!r..~~.mf.TLilici~Ci.cE.~r.~eci_with
-----
suggesting
----#... ....
~
the reform of
-~ -
the~w
---- ...- -
~

I. Bruce G. Buchanan and Thomas E. Headrick. "Some Speculation about Artificial

Intelligence and Legal Reasoning". 23 Stall, L. ReI'. 40 al47 (1970-1971).
 I.EGAL RESEARCH AND LAW REFORM 113

on a particular . n01 a purely departmental committee.. its

out 00 will be wider, a~d the l1~~h~~~. t~ be ac12pt<E~~ ~y _i!.~'.iJ.L~.I~9 be
broadbased.
The time element

Again the nature and extent of research will depend largely on the
time allotted for the project. A law reform agency often. finds !tS~lf
pressed for til!1~, particularly ~h~ii the Governmentdepartment requesting
fortts reporthasalso requested that the project be completed within a
speCTf@'-E,eriod.j The ideal quantity and quality of research cannot
always be achieved.
It must also be noted that the methods of law reform to be adopted
will differ according to the subject. "If we dig in the garden we use a
spade. If we search for oil, we employ a rockdrill. In other words, the
choice of tools depends on the depth to which we intend to probe't.!

t\
Types of research needed for law reform
~c.J.~ Js,:~c:,.J~ ~ ~ , ~... ~_
The types of research needed for law reform may be conveniently
enumerated at this stage. Broadly speaking, almost all of the following
processes would be found to be necessary for each measure of law
reform: ~nal)'tical; i.Ei:...findin..&.~tJ~~~xistin..&l aw@ historical, i.e.
finding 0 rie previous law in orde.,U'p under~alld the reason behind the
existing law and the ~,Q..u..!~Qfits eyolutioD (f comparative,).c. finding
out w1iarttie law is in other countries, and consHkrmg whether it can
be drawntlpon, with or w'ithout modification; 0staustical. i.e.. collection
of statistics to show theworkingaf.the ~~j~ti1J;laW,..aIId 15)
eritiml. i.e,
finding outthe defects in the existing law and suggestiril(reforms. The
criticism has to be based upon (i) public opinion (ii) reports of previous
committees or other bOdiei (iii) practical experience (iv) judicial decisions
(v) academic literatur.e...(.vi) chat1&.ed Qndition~and sci~ntifi2develoI;nte.!ltS
and (v;~ for harmonizgtion with other laws passed i~l~ meant.iJns.
Often, these processes have to be intermingled. Th~'s, a study of the
law of a foreign country may not be enough and history of the foreign
law may have to be studied. Similarly, when one studies statistics in
one's country, one may also like to study the comparable statistics about
other countries and so on.

Ardous processes
Each of these processes is arduous and time consumi!:~:.f~~.!xamE.!e.
the process of findj!1&"outthe'- -""-
~
existing law, i.e. analj'tical research,
-., ..... _ ...__ ._.
~.- 'C
,is

2, Georg Schwarzcnbcrger, "Reflections on the Law of International Institutions",

13 Current Legal Prob. 276 at 289 (1960),
114 LEGAL RESEARCH AND METHODOLOCr

comearatively easy where the law is codifie:-d.,and !.~c~~t~ but t~~ ,so
where the law ttself has to be"colfecre<rrrom a number of sources, or
;h~~ef~i~-i;1 'i~terP-;~t~ti~s ~ith~ I~~"hav~-to b~st~di~d.,' aE~iY.?~r;tnd
digested. Similarly'the- .01derttlela;is~-the-'more di fficult becomes the
'liiSiOrTCiI 'process. This IS1ieCaus~iLLL!!Ot . ~.il~~gll, to_~tl~dy. the
immedtate htstory ot tne exist-.ng-provisions, even wherethe law is
codified. One has to go to the earlier history; it oftenhappens til'at a
controversy whtch has arisen onthe existing provision owes its' o'rigin
to a change of language made by the existing provision in the older one,
and so on.
Again a study of the laws of other countries - a very interesting
process by itself - can become a task of endless magnitude. There is
a wide choice - the common law systems, the civil law systems as
prevailing on the Continent, the civil law systems elsewhere:' and so 011.
Within the countries of the Commonwealth itself, there is a mass of
material, profuse in quantity and rich in quality.
Further, analytical and historical research has to be followed by a
weighing and balancing of the rival points of view - a process which
has no visible manifestation yet involves great time. Law reform is,
therefore, not the work "of a few spare afternoons". The final result may
represent only an infinitesimal portion of the labour devoted and may
even appear to be doubtful in quality.
The pressure of time is often felt as stated above. A law reform
committee, when is pressed with time and expected to show a certain
quantum of result, cannot work in a systematic way. It is not a divine
machine, producing with mathematical regularity reports immaculate in
design and execution. If time given is not adequate, the committee has
to make a somewhat eclectic choice, and this might perpetuate ambiguities
in expression as well as misconceptions about principles." Law reform
undetaken in a hurry carries great risks.

Analytical research

Legislative compete/lce-"Analytical.rese.~~<:h_".i~~_~~~ni~.tlt..P,h[ase
which may be....!:!~d t9, decribe-'iliuYlle..ofIesearch.thaLajUlS. .PLim~ri Iy
ai an e~ation of, what is the e2'.i~ting l!.w. Where the law to be
reforme,f consists or statut'e law, this research wouldmainly -mean
locating The relevant statutes. At the central level, the relevant statutes
would generally consist of central legislation; read, of course, with. t~e
relev~!1t case la'Y.\However, very often state legislation on the particular
...
3. E.g. Louisiana (USA), some countries in Latin America. and Quebec.
4. CfJacob S. Ziegel, "Uniformity of Legislation in Canada: The Conditional Sales
Experience". XXXIX Call IJ RCI' 165 at 185,203 (1'.161).
 LEGAL RESEARCH AND LA W REFORM 115

subject may also have to be consulted. This is particularly so when the

law relates to a topic include~LLn the ccacurrenrIist.Jn the seventh
sch~ the ConstitutiOll_JA good researcher would, therefore, be
expected to cultivate reasonable familiarity with the scheme ofdistribution
of legislativuowers-between
.:--:--- - - - --- --
the .centre
-
andlhe states
--- - .-_ . . - under
.'-. the
.
Constitution, In fact, a sound knowledge of the scheme of distribution
is necessaryin order to determine even the preliminary question whether
legislation on the subject under consideration is within the legislative
competence of the union, or whether it belongs exclusively to the states.
It is needless to say that where a .ect of law r~is-llilQ.q!~k~!l.at
the instance 0 y !.~Lgovc;n)l1:J~m igen~'y .or institl!tiont
there is no point in proceeding with the project, if the subject does not
fall within the legisaltive competence ofthe union except in the hypothetical
case where what has been requested from the law reform institution is
a model bill for the states.! or in the rare case where the proposal for
legislation is to be confined to union territories. Conversely, if the agency
or institution concerned with the particular project is that of a state
government. there is no point in its proceeding further with the project
in question if. in the scheme of distribution of legislative powers under
the Constitution. the topic to which it relates is not within the competence
of the states. This is not an aspect merely of theoretical interest; not
infrequently. it is seen that a particular subject commonly though to be
within the jurisdiction of the centre is, on further examination, found to
be within the exclusive legislative competence of the states. One has to
be on the guard in this respect, especially because of the manner in
which legislation has evolved in the course of the last two centuries in
India. The rigid distribution of legislative powers between the centre and
the units did not exist before the Government of India Act 1935.
Although for convenience, the "devolution" of business took place, the
centre had unlimited legislative power so far as the field of legislation
went. There are several central Acts on the Indian statute book of the
pre-Constitution period, whose subject matter is no longer within the
legislative competence of the Union, since the subject matter does not
fall either within the union list or within the concurrent list in the seventh
schedule. The subject is now exclusively a state subject. One very apt
example is the central Act relating to easements. At present. there is in
force a central Act on the subject-Indian Easements Act 1882. Primari ly,
however. the Act relates to land and rights over land. which (in the
present scheme) is within the exclusive legislative competence of the
states. Similarly there is a central Act on the subject of dramatic
performances - the Dramatic Performances Act 1876-large portions
whereof deal with matters that are now exclusively within the legislative

5. Indiadocs not have an institution like Commissionersfor Lniformity of Legislation.

I I6 LEGAL RESEARCH AND METHODOLOGY

competence of the states, such as public order or entertainments. The

two central Acts mentioned above cannot, therefore, be revised by the
centre except in relation to union territories.
In this respect, mention may also be made of the subject of police.
Although the Police Act, 1861-a central Act-is still in force (except
in those states where it has been replaced by provincial or state legislation),
most of the matters dealt with in the Act now fall within the legislative
entries in the Constitution relating to police or public order.
In this context, it would be of interest to mention that the sub.ject of
administration of justice and constitution and organisation of all courts.
except the Supreme Court and the High Courts was, untiI the insertion
of entry 11A on the subject6 in the concurrent list by a constitutional
amendment, a state subject. Incidentally, the expression administration
of justice has been judicially construed as wide enough to include the
power to try suits or proceedings of civil or criminal nature and the
jurisdiction of courts. Further, it is by reason of this entry that Parliament
has the concurrent power to set up special courts for the trial of
offences of a special class.8 Legislative competence to deal with the
particular subject is thus a mater of theoritical as well as practical
importance.
Sfafurury and other sources - Having determined the question of
legislative competence, the researcher has to turn to the existing statute .
law on the subject under consideration. In this context, he has to
remember that except where the matter relates to a subject covered by
the great Anglo-Indian codes, such as civil and criminal procedure. the
transfer of property and certain other matters dealing with rights in land,
certain branches of commercial law, and so on, the researcher must be
prepared to hunt out the relevant statutory law from a variety ofsources.
This pre-supposes on his part a knowledge of the framework of the
entire Indian statute book. With about a thousand central Acts now in
force, he would naturally search for a guide. However, such guides are
scarce. The conscientious researcher will have to undertake his own
research. Only experience can lessen the chances of mistake. By way of
a very brief analysis of central legislation, it may be mentioned that such
legislation in India-when one bears in mind the entire gamut thereof-
is represented by a variety of measures. What is defined in the General
Clauses Act 1897 as a Central Act draws attention to enactments that
are titled as Acts. But, besides Central Acts properly so called, there
is central legislation not described as Acts but still +brming part cf the

6 . Constitution (Forty-second) Amendment Act 1976.

7 . s117fC of Botrrhul. V . Not-ofintiidas. AIR 1951 SC 69.
6. Irr re The Special Courts Hill, 1978. AIR 1979 Sc 476
9 . Section 3 ( 7 f .
 LEGAL RESEARCH AND LAW REFORM I17

statute book of the centre. Thus, for example, there are regulations."'
A point which is often overlooked is that there are also several British
statutes applicable to some parts of India.!' While some of these statutes
have been repealedI2 after Independence, many of them are still in force.
A very interesting example of such a U.K. legislation is furnished by the
British statutes dealing with admirality jurisdiction, as also by the British
statute concerned with extra-territorial jurisdiction. Then, it should also
be remembered that in soiiie of the areas which were formerly French
or Portuguese possessions, there might be in force laws of the period
before those areas came to form part of India. If relevant, they will
naturally have to be studied. The same comment applies to the legislation
enacted in some of the princely states.
Avaikabikitv-Ascertainment of the statutory framework is thus an
important part of the preliminaries of legal reseach undertaken for the
purpose of law reform. Another preliminary that has to be undergone by
the researcher in this connection relates to the location and availability
of the needed statutory material. Let the point be made clear. The first
step is identification of the relevant central Act. The next step is actually
getting possession of it. In identifying the statutory sources, some help
may be available from the official index to central Acts and from the
unofficial manuals of statute law published by private publishers. But
very'often these are not up to date and it will be the researcher's task
to supplement them by going through the official volumes of central Acts
published for the period subsequent to the publication of the index or the
private manuals, for identifying the relevant material. Cominentaries on
the principal statutes should also be consulted by way of further check,
since very often they take care to print, usually in appendices, legislation
allied or cognate to the principal Act dealt with in the commentary. Of
course, the most satisfactory checks that inspire complete confidence
will have. to be supplied by the researcher himself. This confidence he
will come to acquire by experience and study.
The actual availability of statutory material (assuming that it is
identified) is also an important practical matter: The problem does not
present much difficulty in capital cities, but could prove irksome in the
mofussil. The aspect that creates considerable anxiety is that of securing
up to date copies of state Acts. Common experience shows that it is a
Herculean task to secure up to date copies of state legislation.
Law reform projects generally are confined to parent legislation and
not to the progeny statutory rules and orders. But occassionally it

10. CJ section 3(50), General Clauses Act 1897.

I I . See Law Commission of India,,British Statutes Applicable to lridia (Fifth report)
( 1957).
12. British Statutes (Application to India) Act 1960.
118 LEGAL RESEARCH AND METHODOLOGY

becomes necessary to consult those rules and orders to understand the

actual working of the parent Act. The difficulties of getting hold of those
rules and orders is well known and is not peculiar to India.
Custom-The topic of statute law naturally brings in the connected
one of judicial decisions on the subject-matter of the statute. This will
be dealt with a little later in this article. Before doing so, however, it will
be worthwhile to draw attention to another source of law-custom. Both
in Hindu law and Muslim law, the overriding importance of custom has
been well recognised for about a century. In Hindu law, customs which
are at variance with the Shastric law can still override the specific texts
(in the absence of a statutory provision), if they are valid customs. The
Hindu Marriage Act 1955, for example, expressly preserves the validity
of custom to a limited extent.I3
On matters of personal law (these are the matters that very often
come up for law reform) the legal researcher would be expected, as a
preliminary, to undertake at least two enquiries in this regard, namely, ( 2 )
the extent to which a particular statute on the subject has preserved the
customary law, and (zi) the actual content of the customary law relevant
to the topic under consideration, assuming that its operation has been
preserved. It may be mentioned in this connection that on such an
important matter as the degrees of prohibited relationship of marriage as
prescribed by status at least two, measures recognise the usage or
custom governing the parties to the marriages. The Hindu Marriage Act
allows such a custom to override the statutory prohibition, if the custom
is one which governs each of the parties to the marriage. The Special
Marriage Act (subject to certain conditions) now recognises the validity
of the custom governing at least one of the parties which permits a
marriage between them even if they stand within the prohibited degrees
of relationship as given in the Act.I4[The Special Marriage Act speaks
of at least one party, for the reason that in the scheme of the Act, the
parties may not necessarily be belonging to the same religion, caste, sect
or community]. A number of publication^'^ on the subject of customary
law are available in India and though many of them are slightly out of date,
they are useful as constituting the starting point for research, though not
necessarily the point of termination for research, in customary law.

13. Section 29 of the Act.

14. Section 5(iv), Hindu Marriage Act 1955; section 4 ( 4 , proviso, read with the
explanation to that section and the proviso to that explanation, Special Marriage Act
1954.
15. E.g., P.V.Kane, Hindu Customs and Modern Law [Sir Lallubhai A. Shah
Lectures, 19441, ( 1 950); K.M.Kapadia, Marriage and Family in lridia ( I 966); Sripati
Roy, Customs and Customary Law in British India [Tagore law Lectures, 19081
( 1 9 1 I); S. Venkataraman, Influence of Comnion Law and Equity on the Personal Law
of the Hindus (1 957).
 LEGAL RESEARCH A N D LAW REFORM I I!,

Judicial gloss on statutes-The question of case law on central Acts

is much more important as it constitutes a major part of the task of legal
research, whether the research be reform oriented or not. At the outset,
a caution must be sounded. The general tendency in this respect is to
turn to a standard commentary on the central Act under consideration
and to take the case law from that source. This might, however, often
prove a hazardous task. Without making any comments on the level of
exhaustiveness and reliability of commentaries it is enough to state that
it would be better if the researcher, as far as possible, undertakes his
own examination of the case law. Standard commentaries of distinguished
or well known authors can be used as a starting point, but the research
cannot be confined to them. At some stage, the researcher will necessarily
have to go to the digest for tracing cases that might have been missed
in the commentaries. Ultimately, he will, of course, have to reach the law
reports themselves, whether the case was traced from a commentrary
or from the digest. Even a good commentary might not highlight a
particular point under exploration.
Judgments of High Courts occasionally contain suggestions for, or
hints at, reform of the law, and these suggestions or hints constitute a
very valuable material for the researcher. He would certainly like to use
this material when, later in the course of his work, he is going to make
concrete suggestions for law reform. At present, unfortunately the
headnotes to law reports in India, and the digests of case law, do not
contain a prominent and specific heading law reform that will catch
the eye of the researcher. (One wishes that such headings were inserted
by reporters in bold types). The researcher must, therefore, peruse the
entire judgment in order to find out if suggestions for reform have been
made in the judgment. In more recent times, with the greater awareness
on the part of the judges of the need for refo& of the law, one may find
in the judgments suggestions for reform of the law more frequently than
before. It may not be out of place to mention here that one of the reports
of the Law Commission of India deals with a subject which was referred
to the Commission after the Supreme Court, in one of its judgments,I6
suggested that the law on the subject of recognition of foreign divorces
was in need of reform.
Exploration of case law - A question of detail in connection with the
exploration of case law is well worth mentioning. Every researcher
knows that he cannot confine his researches to case law up to a
particular date. Judicial pronouncements on so many issues are pouring
in with such a frequency that the researcher must take note of them, if

16. Sufya v. Teju Singh, AIR 1975 SC 105.

17. Recognition ofForeign Divorces [Sixty-fifth report] (1976). The report incidently
still awaits implementation.
120 LEGAL RESEARCH AND METHODOLOGY

he is to present the living law. He will find it useftil to keep himself

abreast of them, even while the research is going on. He will. therefore,
have to be on the alert every moment. It may be that each month or each
week when the monthly or weekly crop of reported decisions comes to
his hands, he may not find time to make very detailed summary of the
cases reported in quick succession on the subject at hand. If so, one
alternative that he can adopt is just to make a brief note, in one or two
sentences, of the point decided. This, in fact, is a device which can he
usefully adopted in rega.rd to periodical literature also, containing articles
relevant to the subject at hand.
Approaching case law - How is a judgment to be approached? It has
been observed that Every case lays down a rule, the rule of the case.x
However the unicentricview implicit in the phrase the rule of the case
is not always of utility in a thorough analysis of judgment. The ideal
position is, of course, simple:

[Tlhere is one thing that ... [a judicial opinion] must do, viz.. it
must state plainly the rule upon which the decision proceeds.
This is required, in theory, because the Courts function is to
declare the law; and in practice, because the Bar is entitled to
know exactly what rule they can follow in advising clients and
in trying cases. l 9

But it is not always easy to discover the rule of the cases. The
eight elements of the case study brief have been thus stated: (i) Heading;
(ii) procedural history; (iii) assumed facts; (iv) assumed law; (v) question
presented; decision; (vi) reasoning; (vii) rule; and (viii) The
researcher will have to find out with great care number ( v ) and (vi).
Analysis of appellate opinion is comprised of two processes : (a)
description of each opinion, and (b) assessment of each opinion.
Description of an opinion means summarizing its content, especially
its reasoning, in an ordered fashion. This is a difficult task. Often,
indeed, the description component of case analysis is thought to
comprise the entirety of case briefing. Assessment, however, also. i s
essential to a thorough case analysis. Assessment is comprised of a
critique of the reasoning, and determination of the significance of the
case in relation to other cases or sources of law.

18. K . N . Llewellyn, The Bramble Bush 66 ( 1 960).

19. John Henry Wigmore, A Treatise on the Anglo-Americnri $yslerir o/ Ei*idorcc 111
Trials at Conrnion Law. Vol. 1 at 253 (1940) (emphasis omitted).
20. Peter W . Gross, On Law School Training in Analytic Skill, 25 J . Lcgal Ed
261 at 274 (1972-1973).
21. Id. at 261, 273.
 LEGAL RESEARCH A N D LAW REFORM 121

The problems concerned with a study of case law are thus formidable.
There is, however, one advantage in research undertaken with a specific
object. The lawyer who goes into his library to read cases knows exactly
what he is looking for. So is the researcher working for law reform. He
has a legal problem to handle and he reads each case to see what its
bearing is on his particular question. He is not expected to analyse in a
vacuum. In his mind is a specific problem, a question to be answered,
a compelling curiosity with an end near.
Incidently, obiter dicta in a judgment are not always to be
disregarded where law reform is the objective. Though having no
binding force, these are useful as indicating the judicial trend, or an
uncertainty in the law or the need for clarification of the law.
ConJIictofjudicial decisions-A peculiar problem that the researcher
in India has to face is that of conflict of decisions among the high courts.
With the legal and judicial system that we have, such conflicts are
inevitable. Until a point is settled by the Supreme Court or dealt with by
suitable clarificatory legislation, conflict may arise or survive and the
researcher, when working on case law, must address himself to this
aspect also. Foreign scholars interested in law reform are often unaware
of the nature and magnitude of this part of the process of research in
India. The volume and magnitude of this part of the work naturally differ
form statute to statute, but broadly speaking, there is hardly any important
central Act dealing with the lawyers law on which the researcher will
find a complete uniformity of judicial decisions. He should keep-an eye
on the possibility of conflict and in the majority of cases, he will discover
that there is some conflict, obscurity or uncertainty.
Conflict of views may be due to defects in drafting, but it could also
be due to the essential nature of language. Language, as every student of
legislation and statute law knows, is at best an ambiguous instrument for
the communication of ideas. For example, scholars are, by now, well
aware of the ambiguity inherent in the simplest English word person.
How far this expression includes an unborn human being has been the
subject of considerable debate in recent times. During an earlier period,
there used to be a controversy as to the question whether that expression
includes corporations, particularly m the context of criminal law. At a still
earlier period. there was a controversy even on the question whether the
expression person would include a woman. Etymologically, the word
person is derived from persona which means a mask. But legal and non
legal language often travels far beyond the etymological source.
Conflict of decisions on a particular point between high courts is
occasionally due to different views as to matters of policy taken by
various high courts. Whatever be the source of the conflict, the researcher
will have to devote serious attention to it and (where appropriate) to
suggest a clarification of the law.
122 LEGAL RESEARCH AND METHODOLOGY

Herein comes one of the romances of law reform. Once it is

ascertained that there is a conflict of decisions on a particular point,
the practical question before the researcher engaged in law reform is,
what suggestion should be made regarding the direction in which the
law is to be reformed? At this stage, the researcher will have to make
a choice between two or more conflicting views of the high courts and
select one of them. Some times, he might have to evolve a compromise.
Occasionally, he might even have to suggest an entirely new path, not
taken in any of the judicial decisions that have created the conflict. At
this stage, there will natufally arise a question of values, and no amount
of legal scholarship in itself will furnish the answer. The answer must
come from wisdom and experience that will supply the needed insight.
Of course, this may not be a task to be entrusted exclusively to one
person-which is the reason why most law reform institutions are
multimember institutions.
Occasionally, when scrutinising a statutory provision and assessing
the need for reform, the researcher might have to go beyond the case
law on the provision and consider whether, apart from case law, the
existing provisions need reform. Judicial decisions might have taken a
uniform view on a statutory provision, so that there is no uncertainty
as, such. But justice may require a change in the statutory provision.
This is for the reason that the statutory language may be so mandatory
that the courts would not have considered it proper to depart from it
even though they regarded it as unjust. No doubt, according to some
jurists, The lawmaker may formulate a general rule, without foreseeing
exceptional cases which remain outside the purview of the rule. In that
case, even though the text is apparently absolute, it would be proper
to admit derogation from it, by applying the maxim: Cessnntc cciusci
(egis,cessnt
However, courts do not always adopt such an approach for reasons
which need not be gone into in the present study. A review of the law
would then have to address itself to the question of changes needed in
the interests of justice. As the late Justice Felix Frankfurter wrote:
Legislation is essentially empiric ... To recognise marked
differences that exist in fact is living law; to disregard practical
differences and concentrate on some abstract identities is lifeless
logic.23

22. I.M. Planiol, Traiie Elemeniaire de Droii Civil. pt 1 s. 1431 (12th ed. La. St.
L. lnst. transl. 1959), cited by J. Michael Veron, Civil Law Method Disavowal o f
Paternity-Prohibited grounds of Impotence Interpreted to Include Sterility (note).
47 Tul. L. Rev. 205 at 210 (1972-1973).
23. More). v . Doud, 354 U.S. 457 at 472 (1957) (dissenting opinion).
 LEGAL RESEARCH AND LAW REFORM 123

Historical research

Analytical research deals with the present. But the past may also
have to be explored. On the Archives Building in Washington, there is a
famous inscription which reads : All thats past is prologue. These are
pregnant words and not mere rhetoric. The past often explains the
present, most vividly.
The next type of research required in law reform, then, is historical.
But historical research in this context is not meant a discussion of the
history of each rule of law or of each statutory provision for the sake
of mere intellectual delight or for mere record. Like all other types of
research required for the purpose of law reform (or, for that matter for
the purpose of attaining any other concrete object), historical research
is useful in law where the present statutory provision or rule of law has
raised meaningful queries and it becomes necessary to explore the

circumstances in which the present position came about.

Not unoften, an exploration of the historical material gives a clue to
the reasons why a particular provision was framed in the form in which
it now appears. This often removes certain doubts, or even supplies to
the researcher the reasons that justify the present provision- reasons
which may not otherwise be apparent. Obviously, where such a fruit is
yielded by historical research, it has its own utility. It prevents one from
making a suggestion for change in the law which one was tempted to
make (before knowing the past), but which now appears to be
unnecessary. Secondly, historical research may often reveal that
alterations in the law on particular lines which are now tentatively under
consideration had already been thought of in the past also, in the earlier
attempts at reform of the law, but had been rejected for sound and valid
reasons. One interesting example of such an alteration in the law, often
suggested but never followed, is the suggestion relating to the composition
of the district court in its civil appellate capacity. The desire to expedite
the entire process of litigation and to reduce the number of appeals in the
higher courts has prompted many reformers in India in the past to
suggest that the district court, when hearing civil appeals, should be a
three-member court, so that the collective wisdom, knowledge and
experience of three senior members of the judiciary is brought to bear
upon each appeal. The proposal may have been inspired on a study of the
position prevailing in France and certain other countries where there is
a system of collegiate courts. The ultimate objective underlying such
a proposal has been to prohibit any further appeal to the high court from
the decision of a three-member bench so constituted. The proposal has
been mooted again and again ever since the twenties of the [twentieth]
century, but has always been rejected. The first high powered body to
reject it was the Civil Justice Committee, popularly known as the Rankin
124 LEGAL RESEARCH AND METHODOLOGY

Committee. The point is mentioned here only to show the usefulness of

historical research.
Thirdly, historical research would often show that a particular
existing provision, fully justifiable at the time when it was introduced, is
no longer so justifiable because the reasons that justified the original
inclusion of that provision are no longer valid. Historical research reveals
the reasons, which might otherwise remain obscure. Finally, on more
general level, when the history of a particular idea which has been given
a concrete shape in the law is studied in depth, it shows the gradual
evolution of the law on certain lines, thus showing the general trend of
change. It is true that some jurists fight shy of history. Jeremy Bentham,
we are told, had scant respect for history and contributed little to an
understanding of legal and social change in a continuum.24 But it is now
well recognised that in many cases there is a certain logic in the way in
which the law evolves, even though, in some other cases, one may, no
doubt, find that the law had in the past developed rather on haphazard
lines.
Of course, when one speaks of historical research, one is not
confined to pure law. Even though the material directly under study may
be legal, that is to say, the source to be consulted may be a traditional
legal source, the factual material that comes to light and the knowledge
of ideas gathered from such a source, may often have an interest that
transcends the exclusively legal field. In fact, social and legal factors
cannot be always reduced to water tight compartments, Any adequate
appraisal of the precise nature and rate of change in a particular country
must also pay special attention to the effect of relevant physical,
demographic, technological and ideological variables. Notwithstanding
Benthams view that a science of law and legislation, could be created
which was governed by laws as invariable as those which governed the
physical world,2S one discovers after some practical experience that to
adhere strictly to such an approach would not be satisfactory course of
action. As an eminent constitutional lawyer says:

The serviceability of history to make the present more

understandable has been remarked upon by writers from Aristotle
to the late Samuel Butler, famed author of Erewhon and The Way
o f M Flesh; and the idea is particularly pertinent to legal ideas
and institutions.26

24. Sir Willam Holdsworth, A History ofEngish Law, Vol. XIll at 125 (1966
reprint).
25. Id. at 124.
26. Eward S. Crowin, The Consfitution and What I / Means Today. preface at 1
(12th ed., 1958).
 LEGAL RESEARCH A N D LAW REFORM I25

Sources of historical material - What, then, are the sources from

which historical material may be drawn? Here the legal researcher
sometimes feels a handicap. Notwithstanding the availability of general
books on Indian legal history and Indian constitutional history, the
researcher will find that when he sits down to tackle a particular subject
assigned to him in a project of law reform, the historical material is not
easily traceable. At least, it is not so easily traceable as judicial decisions.
So far as pure statute law goes, some of the commentaries, no doubt,
supply
. the reader with the text of the corresponding provisions in earlier
statittes. But this does not always fully satisfy the curiosity of the
researcher, and may not, in every case, yield sufficient light as to why
a certain provision was phrased in a certain manner in the corresponding
earlier statute. For this purpose, he will have to consult the relevant
legislative debates. Fortunately, so far as central Acts go. these are
excellently preserved in the national archives or state archives in regard
to the older Acts. If the researcher finds it necessary (as he often may)
to know the contemporaneous judicial understanding or exposition of the
earlier provision, he will certainly like to go tothe sources that contain
such exposition. Experience has shown that one of the best sources to
be consulted for this purpose are the earlier commentaries on the
particular statute. These niight often have to be hunted out from the
record rooms of law and other libraries. A visit to second-hand book
shops, or even correspondence with dealers who deal with second-hand
law books, is also worthwhile.
In modem times, emphasis has been placed on the sociological
aspects of the law, and the social slant given to legal research is a result
of such approach. Here the researcher may find that he would have to
concern himself with social history as well. It would be proper to
mention in this context that on many topics, material available in the
literature of the social sciences is abundant in quantity and rich in
quality, and such material might well be consulted for understanding the
contemporaneous social thinking. To mention one or two examples, a
periodical which was called Bengal, Past and Present {which is no
longer being published) used to contain in its issues of the nineteenth
century and early twentieth century, very valuable social material throwing
light on socio-legal problems of thesetimes. Some of the leading Indian
law journals, particularly those published from the presidency towns,
also used to offer comments on legal and socio-legal matters and many
of their earlier volumes are a treat to read. Of course, the study of social
history is now being cultivated much more intensively than before. I n
particular, after the introduction of sociology as a subject for study i n
the universities and the establishment of various institutes encouraging
teaching, training and research in social sciences, the position regarding
availability and qualify of material relating to modern social currents is
126 LEGAL RESEARCH AND METHODOLOGY

much better. The difficulty now is not of too scanty material, but of too
much material in the social sciences. At the same time, there are fairly
useful bibliographical aids in this area, at both national and international
levels. In particular, indices to periodicals in the humanities and social
sciences are easily available in general libraries. Time permitting, these
should be consulted by the diligent researcher.

Comparative research

The next type of research that can be conveniently discussed is

comparative research. Like all other types of research that are utilised in
a project on law reform, comparative research, when so utilised, is also
of the applied category. Scholars have expressed different views as to
the definition and scope of comparative law. Professor H.C. Gutteridge
affirms : Comparative law denotes a method of study and research
and not a distinct branch or department of the law.27For describing this
method of study where employed to attain an immediate practical end,
one can conveniently use the expression applied comparative law-an
expression that was long ago used by an eminent criminologist in his
study of habitual criminals.** In recent times, in law reform projects, the
study of comparative law (in the sense of a study of the comparable
position in other countries on particular topics forming the subject-
matter of legal reform) bas increased and received a great impetus.
Legislatures, it has been said, imitate each other and law reform bodies,
it may be said, try to learn from each others experience. Sometime ago,
the comparative method found not more than verbal acceptance among
the majority of jurists who continued to pay lip-service to it as a fine
jurisprudential method, but themselves rarely adopted it. This does
appear to be no longer true of jurists, nor is it true of other persons
belonging to the discipline of law. In fact, the comparative method may
not be new as we think it to be. Aristotles Constitutions can, with
substantial accuracy, be called comparative jurisprudence.
Choice of countries - The practical problem that faces the researcher
engaged in law reform when he pursues this method is, what countries
to choose for comparative study, what books and other materials to
consult and how much of fhe matenaI collected to be used fnr the
purpose of the project report. As regards the countries to be chosen,
until very recently, the tendency was to turn only to the English law or,
at the most, to some Commonwealth jurisdictions, such as Australia,
Canada and New Zeafand. However, as legal literacy advanced and the
exchange of legal information between various countries gained in intensity
~ ~~~~

27. Comparative Law ( 1 974 reprint).

28. Norval Morris, The Habitual Criminal 227 (1976 reprint).
 LEGAL RESEARCH A N D LAW REFORM I27

and frequency, it became possible to spread the canvas wide. Research

for law reform does not, in its comparative aspect, confine itself to
England. To quote only one illustration of the actual use of the Comparative
method in India, the report of the Law Commission of India on the Indian
Penal Code9 draws heavily on comparative material, which is not
confined to the above mentioned areas but also covers several Continental
countries, American jurisdictions and other areas. There is one more
aspect of the comparative method which is of peculiar interest in the
Indian context. Considerable number of Anglo-Indian codes have travelled
outside India, particularly in the realm of criminal law and procedure and
very interesting points that might not have arisen in India sometimes
arise on these codes outside India.
Choice of inaterial - When using the method of comparison, the
choice of material for consultation has always been a matter presenting
difficulty to researchers. The researcher will not find this inaterial
easily available in a convenient form at one place. He will have to
search for it in stages, and it is likely that even after a long and arduous
journey he may not reach his destination. Again, such material as is
available may not be of uniform standard and its range, accuracy and
reliability cannot always be very safely assessed. With law books in
plenty, it is not very easy to locate a work of excellence dealing with
foreign law. There are various alternative modes of commencing
research into the position prevailing in a foreign country on a particular
legal topic. One could begin with a book on legal system of that
country, and then proceed to an exploration of the particular point with
the help of the bibliography that might have been given in that book.
If the problem under investigation is one on which the law in the other
country has been codified, one can adopt the alternative device of
going straightway to that code, but, then a commentary may be
needed. If the topic is one on which a reliable textbook in the foreigii
coutry is available, that textbook can be used. But the case law has still
to be seen. If the researcher can locate a report of a law reform body
of the foreign country concerned (on the subject under discussion), he
would be fortunate enough. Material contained in that report is usually
of a very high order and the researcher can save his labour and anxiety
by utilising it. Sometimes, it may happen that such reports of law
reform agencies contain a discussion on the law not only of that
particular country but also of its neighbouring countries as well. The
researcher would then be doubly fortunate. Use of relevant gist of
discussion in such a report would, of course, be a use of a secondary
source and not of a primary source.

29. Indian Penal Code [Forty-second Report] ( 1 97 I ) .

12s LEGAL RESEARCH AND METHODOLOGY

Whether the source is primary, secondary or tertiary, one

precautionary measure that should, as far as practicable, be adopted in
all legal research, but more particularly in. applied comparative law, is of
checking and cross-checking. There could be so many methods of
checking and cross-checking. Two or more primary sources may be
checked with each other; a secondary source may be checked with a
primary source; or two or more secondary sources may be checked with
each other. The ideal method,'-of course, would be for the researcher to
visit the foreign country concerned and consult its law libraries himself.
However, like many other ideals in life, this remains difficult to attain
because of the paucity of financial resources. Correspondence with
one's counterparts in other countries would be a useful device, effective
as a reasonable substitute for personal visit.
Foreign and comparative legal material in English is considerable.
But specialised studies dealing with particular topics are nowadays more
frequently published in French, German and, occasionally, in Italian,
than in English. Although physically accessible, this non- English material
remains intellectually inaccessible to a researcher not familiar with its
language.
This difficulty is particularly felt in regard to countries like Japan,
Thailand, Indonesia and other Eastern countries, about whose legal
systems and institutions one may like to have more extensive and
intensive information than is at present possible. Difficulties of language
often come in the way of acquiring such information. Legal research
and discussion in Japan, for example, practically remain a closed book
to Indians, even though it is well known that that country has achieved
great progress in this respect and a number of publications in Japanese
of a very high order on legal subjects come out with great frequency.
No doubt, there are books in the English language about the aspects of
the Japanese legal system and there are also available series such as law
in Japan and Japanese Annual of International Law, which are accessible
to scholars of other countries. Nevertheless, the reading of this not
very profuse material increases the researcher's appetite, which often
remains unsatisfied. Here, he must leave the table half-fed and half-
hungry.
U.N. and allied agencies-During the last four decades, the United
Nations through its various agencies has brought out a number of
publications relevant to legal topics which are of great utility for a
researcher engaged in a project of law reform. Material on comparative
law not easily available elsewhere is found conveniently collected in
these publications. In the field of commercial law, the UNCITRAL has
been particularly active.
 LEGAL RESEARCH AND LAW REFORM 129

Statistical research

When a subject of law reform deals with matters of social research,

opinions might have to be invited from the public also. Even apart from
that the researcher would often wish to gather statistics which glve an
idea of the actual working of the law. This is a type of research i n
regard to which lawyers in India are not in a very comfortable position.
There are some persons who are, by nature and temperament, shy of
st'iifistics. Anything in the discipline of advanced arithmetic causes a
slight discomfort to them. Moreover the collection and collation of
statistics is really a specialised subject, and it is difficult to find a legal
researcher who is equally at home in the field of statistical research.
Of course, some kind of statistical device is used by everyone in his
private or business affairs. But when it comes to the presentation of
inforniation in the form of frightening tables, lawyers are ill at ease.
Generally speaking, the magnitude and nature of the statistical
information required for law reform depends on the topic to which the
information is relatable. For example, when one is concerned with a
fact o f judicial administration, one may need figures about the nature
and volume ofjudicial business, its rise and fall, the institution, pendency
and disposal of cases and the like. If one is concerned with judicial
behaviour in its particularity, for example, how far in particular states
or areas, the conviction rate for particular offences is going up or
coming down, one would need a more specialised table. This type of
research niay have to be undertaken some day. Then if matrimonial law
is the subject of reform, mere figures of institution and disposal niay
not give correct picture of the success or failure of matrimonial life.
Matrimonial litigation in courts represents only a segment of the total
picfure of the married life of citizens. The troubles and travails, the
happiness and inisery and the joys and sorrows of family life are, in
reality, matters too difficult to capture in statistics.
Sample Surveys erc.- This naturally brings us to the more usual type of
field research-sample survey, opinion polls and the like. Experience
shows that such type of research is better conducted by qualified social
workers with an aptitude and professional training for the purpose. Of
course, those qualified in sociology may not, at the same time, be
qualified in law. Thus arises the question of interdisciplinary cooperation.
Although interdisciplinary programmes do not always have a practical
utility which, it is claimed, they have here, is one kii?d of work for which
such cooperation may be useful. Social workers can be given an
opportunity of acquiring some knowledge of the elements of law--not
the whole law, but (i) the legal system in general, and (ii) an outline of
selected topics, particularly family law and criminal law (these are
130 LEGAL RESEARCH AND METHODOLOGY

subjects in regard to which the help of social workers in conducting field

research and in presenting it in the form of statistical tables is most often
needed). As legal research in India advances and widens its canvas to
cover more and more areas of our life, the need for providing such
opportunities of training will also be increasingly felt. A three month
course in law and sociology, with the faculty drawn form both the
disciplines and with some lectures on research methodology could be
started by some institutions as a beginning.
Empirical research itself is a vast subject, deserving separate
treatment. The comments made above are confined to those facets that
are directly relevant to law reform. Incidentally, while on the point of
law and sociology, mention may be made of certain publications that
have now started appearing. There are now in currency a number of
interdisciplinary journals dealing with law and society, law and medicine,
law and psychiatry, law and economics, law and technology, computer
law and so on. In fact, there is even a journal devoted exclusively to
interdisciplinary studies as such. The maximum use should be made of
such journals. Institutions that run combined courses should also be
mentioned in this context. While many of these journals are indexed in
the usual documentation of legal materials, some can be traced from the
documentation relating to disciplines other than law.
Internet-Nowadays, internet provides a good facility at least for
locating the source of certain materials of comparative value. It may
not always provide the full text but can at least furnish the researcher
with a useful clue. Of course, such further exploration may itself
involve a lot of time, which aspect should be taken into account when
planning the time-table for the project.

Critical research and normative aspect

The presentation of data, whether it be purely legal one or whether

it be in the shape of statistics, and the marshalling of material, whether
it be of one discipline or of an interdisciplinary character, is only one
stage of the legal research undertaken for law reform. Where law reform
is not the main objective, this stage may mark the culmination of the
activity of research, but not so in the case of research for law reform.
Its purpose is not fully attained until the lines on which reform is needed
are indicated. One may call this "nonnative research". This part of the
work involves not the mere evaluation of the material that has been
gathered, but also envisages the offering of concrete suggestions on the
basis of such evaluation. The scope for forming ethical or value judgments
at this stage is obvious.l"
30. See text corresponding to foot note 37.
 LEGAL RESEARCH AND LA W REFORM 131

From where, then, is the material to be drawn for this purpose? This
question is often sought to be answered by saying that the needed
material could be drawn from academic writings and judicial observations.
However, in actual practice, both of these sources are found to yield
only very limited assistance. The researcher will have to fall back upon
wisdom rather than on learning. It could be the wisdom. Ultimately, it
is only experience and maturity that make his wisdom develop.
Public opinion-A question that arises in connection with public
opinion is the modality by which it is to be ascertained.
Another equally important question concerns the proper part to be
played by public opinion in the formulation of law and legislation. The
second question, of course, has a relevance transcending the process of
law reform, and is significant for the entire legal system and its functioning.
Apart form the outstanding work of A.V. Dicey and the more recent
publication edited by Morris-" Ginsberg,32 there have been specialised
studies concerning opinion and legal change in certain aspects.P Much
has also been written on law and morality and the role of public opinion
in the formulation of rules having a moral content. However, coming
specially to the first question, it can be stated that there have been more
than one method of ascertaining public opinion in the process of law
reform. There is, in the first place, the method followed by many law
commissions of issuing working papers.l" Then, there is the alternative
of issuing a questionnaire (this will be dealt with in some detail later).
Where the subject is a short one or one on which specific proposals or
queries may be difficult to formulate, the law reform body might have
to satisfy itself, at least initially, with merely issuing a press communique
inviting opinions and comments. More elaborate methods can be resorted
to at a later stage. Where, on the other hand, the subject is one that
requires detailed consultation and personal exchange of views, a better
alternative is the holding of oral discussions.
Finally, there is the more interesting question of direct participation
by laymen in the process of law reform.P There might be a case for
including lay persons-a suggestion that has often been made by lawyers
as well as by laymen. It may be that a lay commissioner may not be able
to represent the infinite variety of lay interests in the reform, and it may

31. Lectures on Relation Between Law and Opinion in England During the Nineteenth
Century (1905).
32. Law and Opinion in Eng/and in the 20th Century (1959).
33. See, e.g., Yehezkel Dror, "Law and Social Change", XXXIII Tul. L. Rev. 787 at
789,794,801 (1958-1959).
34. See for the practice in the English Law Commission. John H. Farrar, Law
Reform and the Law Commission 33, 34, 71 (1974).
35. Geoffrey Sawer, "The Legal Theory of Law Reform", 30 Univ. of Toronto Law
Journal 183, 194 (1970).
132 LEGAL RESEARCH AND METHODOLOGY

also be true that he may not be able to participate in the cut and thrust
of debate in the commission. Nevertheless, the experiment is certainly
worth trying. It should not be too difficult to secure the services of a lay
person with high intellectual attainments and with an ability to grasp
complex rules and principles, without that person being himself or
herself a lawyer.
To make the discussion concrete, it may be proper to give at least
one example of a field where consultation with the public is highly
desirable. This is the field of family law. Take as an instance, the status
of illegitimate children, a subject on which changes in the law have
already begun and greater changes are needed.P No doubt, the subject
has many legal and constitutional aspects and it is ultimately for the legal
experts to prepare and present well-reasoned proposals as to what shape
the reform should take. At the same time, lay participation in such
subjects strengthens the hands of the reformer, increases his enthusiasm
and generally facilitates the work on a matter basically concerned with
social policy.
So far as the Law Commission of India is concerned, it has, for
ascertaining informed opinion, been adopting one or more of the alternati ve
methods mentioned above as might be appropriate to the nature of the
subject matter of the project and other circumstances. For example,
while preparing reports on certain subjects, tentative proposals have
been issued by the Law Commission, in regard to few other subjects,
detailed questionnaires were sent out to interested persons and bodies for
ascertaining their opinion. On matters of a socially sensitive character,
oral discussions have also been held. Sometimes, more than one of these
alternatives may be combined, having regard to the nature, complexity
and importance of the subject.
Questionnaire-Of particular importance in law reform is the
preparation and issue of the questionnaire.
Issue of a questionnaire usually involves the following steps :
(a) Selection of topics and sub-topics for inclusion in the
questionnaire
(b) Formulation of the actual questions on the topics etc. selected
as per as above
(c) Addition (under important questions) of suitable explanatory
notes in order to highlight the significance of the question
(d) Preparation of an appropriate forwarding letter which has also
to fix a time limit of sending in the comments.
(e) Actual dispatch.

36. See Harry D. Krause, l/Iegitimacy : Law and Social Policy (1971).
 LEGAl. RESEARCH AND LAW REFORM 13-'

The process is to be undertaken carefully and in preparing the

questionnaire, it has to be remembered that those who will receive it
would not have the time or resources to go into details. They would be
able to spare only, say, not more than an hour for answering it. The
format of the questionnaire should, therefore, be so set, that replies
could be elicited readily. This presupposes that there will be no ambiguity
in any of the questions and that the problems that might have arisen in
the minds of those who sent the questionnaire are presented with
reasonable clarity.
By many persons, questionnaires are regarded as the very first step
in a project for reform, to be taken at the beginning of the project.
However, experience shows that a good and meaningful questionnaire
postulates familiarity with the contours of the topics concerned, thus
requiring some study and reflection. In this sense, it is convenient if the
preparation and issue of a questionnaire, instead of preceding the
commencement of the study, is regarded as an intermediate step.
A questionnaire should not be too long or too short. Too long a
questionnaire leads to confusion and is likely to create increased work
when the researcher comes to the stage of tabulating the various replies
with reference to each sub-topic. Too short a questionnaire fails to elicit
useful response, because, if the issues are not spelt out by the querist,
the respondents will not take the trouble of doing so. In fact, this part
of the research work in law reform is a taxing and laborious one and also
time consuming.
Certain guidelines could be usefully followed in preparing
questionnaires. The following are a few suggestions : (i) Prefer short
questions to long ones and simple questions to complex ones; (ii) make
the questions as precise as possible; (iii) where the questions are
numerous, arrange them under a few groups, with suitable group
headings; (iv) give marginal headings to each question; and (v) above all.
remember that the questionnaire should not be frightening in form as it
is intended to elicit ready and warm response.
Tabulation of views-Where opinions have been invited on a particular
subject and replies expressing such opinions are received form various
persons, bodies and organisations, it becomes necessary to tabulate the
replies received with references to each query. Here the order in which
tabulation is made becomes of importance. Where the subject matter of
the project is a statutory one on which a questionnaire has been issued.
the tabulation will naturally have to be arranged in the order of the
questions. Where the subject matter of the project is non-statutory and
no questionnaire has been issued as such, but opinions have been invited
generally, the task of tabulation becomes a bit difficult, since. for
carrying out the work in a methodical fashion, it will be necessary to
134 LEGAL RESEARCH AND METHODOI,OGr

improvise a list of topics and to arrange the points made in the replies
in the order of the topics so improvised. Where the subject matter of the
project is statutory, generally it is convenient to tabulate the replies in the
order of the selection of the statute. It is needless to say that where the
sections are lengthy, the tabulation has to be sub-sectionwise and not
merely sectionwise.
What exactly does "tabulation" mean? Briefly it may be described as
breaking up each reply into the points made therein and allocating the
pointwise reply to the question, topic or section to which it relates, so
that the person or persons who are to take a decision as to merits will
have a picture of the opinions received in the law reform agency on each
point. Tabulation means re-distributing the replies so that they are
arranged not personwise but pointwise. This makes it possible to read,
at a stretch, all the shades of opinion on one particular question. topic
or section together, and thus to arrive at an assessment of the relative
quality and quantity of shades of views expressed on that particular
question. It is obvious that for this purpose reply by reply perusal (that
is to say, perusing first the whole reply of one person or organisation and
then the whole reply of another person or organisation and so on) would
be of no use. What is intended to be obtained is a picture of the opinions
topicwise, questionwise or sectionwise. For this reason, it is necessary
that the replies, when received are broken up, the pointwise views
expressed are noted down on separate page and a pointwise self-
contained picture is presented by the researcher. This is, in short, the
process of tabulation.
Now, a few points of detail. In reducing replies to a suitable form
for the above purpose, it is usually necessary that the gist thereof be
summarised rather than that the replies be quoted verbatim. Experience
shows that most replies, at least those sent by lawmen and even by some
lawyers, suffer from certain infinities. Either they are prolix and repetitive
and there is scope for pruning or sometimes the reverse is the situation.
namely, the replies are too cryptic or are not very clear or self contained.
Here some editing would be needed. Thus, tabulation involves considerable
intellectual labour. Incidentally, it also involves some physical labour
when one is at the initial state of breaking up the replies point-wise.
Ascertaining the points for reform-Assuming that analytical,
statistical, historical and comparative research have all been covered, the
crucial question that arises in a project of law reform is, wherefrom does
one get fresh ideas? The writings of theorists, and particularly those of
academic lawyers, come to the mind in this respect. However. as a
source of law reform, these can be of vastly differing degrees of
importance. At their best, they can be of the greatest assistance in
inspiring and formulating reforms; at their worst, they may be positively
dangerous to listen to.
 LEGAL RESEARCH AND /.AW REFORM 135

There are, no doubt, illustrations of the writings of law teachers as

a possible source of law reform at its best. At the same time, examples
of the worst variety of this species may, without difficulty, be found
among contributions to legal journals which are sometimes rather hastily
put together. These represent a development in the functions of law
teachers which has obtained quite a new degree of emphasis in the last
decade or two. In itself, it is to be warmly welcomed, for it is indicative
of a new dynamism in legal education which was sadly absent from the
rather duller type of scholarship which was once thought sufficient for
the education of the law student. But the "rat race" has invaded the
universities and what had its origin in a praiseworthy desire of an
academic to do a decent job of legal research, collateral with the teaching
involved in his position; now occasionally involves him in a frantic
necessity to "publish, publish, and publish again" even if he has nothing
much to say, and even if what he has to say may not be particularly
sound. He is faced with the threat "publish or perish".
In any case, academic writings (as experience would seem to suggest)
contribute only a small slice to the material to be gathered by the
researcher for law reform. Such writings may suggest some outlines of
reform, and that too, in a few areas only. But the major labour has to be
done in the law reform agency itself.

Formulation of conclusions and legislative drafting

The formulation of conclusions on various issues in any project of

law reform is not so easy as is sometimes understood. There are at least
two important aspects which come to the forefront when this stage is
reached. The first problem arises out of the possibility of a difference of
views among the members constituting the law reform agency in question.
This has to be handled by tact. The second problem may arise because
of the complexity and difficulty of the issue involved, where it becomes
difficult to decide which of two or more conflicting approaches should
be chosen and incorporated in the report. Assuming that, notwithstanding
these problems, the law reform body has been able to come to a
conclusion (either unanimously or by a majority) as to the recommendation
to be made, the next question will arise as to the precise legislative shape
to be given to the recommendation. Most law reform agencies follow the
practice of suggesting the draft amendment. This requires the assistance
of a skilled legislative draftsman. Their number is scarce throughout the
world. Notwithstanding the emergence of institutional training
programmes in legislative draftsman, the supply does not meet the
demand.
Nevertheless, a law reform agency must, of necessity, have available
to it expert assistance in legislative drafting. Drafting can be "learnt"
136 LEGAL RESEARCH AND METHODOLOGY

only by practice. But training sessions of, say two weeks or so, may
help. There are also some books available on the subject.I"

The presentation of research

The first great principle of writing is clarity. This means, that there
should be "economy of mental effort on the part of the reader".38
The writer must :
(a) himself understand what he is saying; and
(b) be able to express it in such a manner that "he who runs may
read."
There are several hints that can be offered, to help a writer in
achieving clarity. Principal amongst these are -
(a) short sentences;
(b) short paragraphs;
(c) a brief introduction to important passages;
(d) a summary statement of points;
(e) adequate use of headings; and
(f) express enunciation of propositions which, to the writer, may
seem "obvious", but which are not so obvious to the reader.

Bibliography

In the course of any legal research, one is necessarily concerned

with bibliography. This has two aspects-preparation of a tentative
bibliography in the beginning and presentation oifinal bibliography at the
end. The first has a practical object in view, namely, to enable the
researcher to make an adequate start. The second has an academic value.
In a law reform project, the first aspect assumes great importance.
A bibliography cannot be "fossilised". It grows and grows, in the
course of the project. The main sources (in a project of law reform)
consist of -
(a) statutory material
(b) decisional material
(c) academic material
But, in each of these principal divisions there are sub-divisions, such as,
historical, analytical, comparative and critical. For example, take statutory

37. A.H. Angelo, "The Mauritius Law Revision Unit-An Answer to Some
Legislative Drafting Problems", 25 Int. Compo L.Q. 894 (1976); see, also P.M. Bakshi,
Introduction to Legislative Drafting (/996).
38. Rickard, Technical writing 77 (1931), quoted in H. Weihofen, Legal Writing
Style 4 (1961).
 LEGAL RESEARCH AND LAW REFORM 137

materials. Here, one may be required to trace the history, ascertain the
existing provision, identify the comparative statutes elesewhere and also
trace criticisms, both of Indian and comparable foreign statutes.
Theoretically, the process could be endless. But a practical project
of law reform has limitations of time, manpower and money. Hence,
some restraints have to be imposed on the tendency to read as much as
possible and to devour as much as one can.

Rewards of research

Research (apart form its material rewards) offers higher rewards-

intellectual and spiritual. The belief must be communicated to the
researcher, that, in the words of Mr. Justice Holmes "[A] man may live
greatly in the law as well as elsewhere, that there, as well as elsewhere,
his thought may find its unity in an infinite perspective; that there, as
well as elsewhere, he may wreck himself upon life, may drink the bitter
cup of heroism, may wear his heart out after the unattainable't.J?
Again it is research that brings to us the awareness that the law is
a flowing river, never standing still though it may have the outward
appearance of a placid lake. As Wigmore has pointed out: "To any
student, it is an important intellectual stage when he first realises that all
law is in a state of constant motion like kaleidoscope - do not remember
when this realisation came to me. I know it was not while in the law
school; but as I look back, I note a great difference in 'all my opinions
about law since the time of that realisation'. "40

39. Quoted by Sol M. Linowitz, "Our Changing Society: The Lawyer's Challenge",
54 ABAJ. 445, 450 (1968).
40. John H. Wigmore, "Nova Methodus Discendae Decendaeque Jurisprudentiae",
XXX Harv L Rev. 812 at 823 (1917).