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Types of Legal Research Needed For Law R 1 PDF
Types of Legal Research Needed For Law R 1 PDF
Sanjeyvignesh.J, Page 1 of 41
INTRODUCTION
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“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 2 of 41
WHAT IS RESEARCH?
John W Best has rightly said “The secret of our cultural development
has been research, pushing back the areas of ignorance by discovering new
truth, which, in turn, leads to better ways of doing things and better
products”.
DEFINITIONS:
OBJECTIVES OF RESEARCH:
1. Legal Education and Research Methodology by Dr. Mono Purohit, Central Law
Publications
2. Khan, J.A. 2007 P-1
The research has its functions and uses. We conduct research either
to enhance the efficiency of our system, increase the volume and quality of
information, to add on to what already exists or for creating material
conditions of comfort. This also makes us become a class apart. In other
words research has got to be meaningful.
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of that provision are no longer valid.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.
Jeremy Bentham stated “we are told, had scant respect for history
and contributed little to an understanding of legal and social change in a
continuum.”
But it is now well recognised that in many cases there is 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.
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 as
easily traceable as Precedents.
Introduction:
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 8 of 41
5. P.M.Bakshi, Legal Research and Law Reform, ILI, First Reprint 2006.
6. Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 2009
This kind of research is carried on by all the Judges, Lawyers and Law
teachers.
The two most important examples of traditional research are the Law
of Torts and Administrative law. These two areas of law have been
developed by the Judges rather
As the latest decision of the Supreme Court on the point, Gian Kaur
v. State of Punjab10, lays down, life is considered the most precious
commodity and every effort has to be made to preserve it. The Court, in the
instant case, made it clear that the right to life, including the right to live
with human dignity would mean the existence of such right upto the end of
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 11 of 41
natural life. This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. The Supreme Court also
reversed its earlier judgement in the Rathinam Case11 and held that the right
to life does not include a right to die.
Apart from this our statutory law, is replace with such phrases or
Vocabularies which have no definite answer for all situations. The Courts
have been given the discretion to interpret and apply them so as to sub serve
the social need, e.g., ‘just and equitable’, `public order’, ‘reasonable
Opportunity of being heard’, ‘reasons to believe’, ‘rash or negligence act’,
‘reasonable apprehension’, ‘industry’, etc. while interpreting these phrases
the judiciary itself has evolved certain norms which are vague and flexible 13.
Which can be made certain and workable by evolving principle on the basis
of research.
The Court has also recognized the right to die and hence an attempt
to commit suicide is more an offence. Although in a recent judgment in
Gyan Kaur v. State of Punjab and others, the Supreme Court has reversed
this judgment and has held that the attempt to commit suicide is a
punishable offence.
Introduction:
Prominent reasons and arguments stressing the need for inquiry into social
facets of law are:
a. The emergence of sociological jurisprudence23 and its underlying
philosophy assigned ‘law’ the task of ‘social engineering’.
b. In the light of such a role assigned to law, it is argued, it becomes
necessary to look into the ‘factors’ or ‘interests’ of the Legislature
that play significant role in setting the legislative process in motion
and in identifying the beneficiaries thereof and the reasons there for.
c. It becomes necessary to carry out frequent attitudinal studies of
those whose legal position is sought to be modified by a given law as
well as of those who are vested with the power of interpreting and
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 15 of 41
Sociology of Law:
From where does a doctrinal researcher get his social policy, social
facts and social values? The answer is his own experience, observation,
reflection and study of what others have done before him in a similar or
same kind of situation. However, it will certainty add value to his research if
he gets an opportunity to test his ideas by sociological data. In other words,
the sociology of law tries to investigate through Empirical Data how law
and legal institutions affect human attitudes and what impact on society they
create. The sociology of law also concerns itself with the identification and
creating an awareness of the new problems which need to be tackled
through law.
Just as a matter of semantics, the author will use the term “sociology
of law (or) Socio-Legal” where the major tools of a legal researcher are
“empirical and sociological data”. This is to be distinguished from
sociological jurisprudence and, as stated earlier, a doctrinal researcher has to
be but a sociological jurist because of the wide discretion available to him in
modern times to make his value choices.
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 16 of 41
24. International Legal Center, Law and Development, 10, (New York, 1974)
25. Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
26. Upendra Baxi, Socio-Legal Research in India: A Programs rift 7 (ICSSR, 1975)
The ultra vires doctrine provides a half way basis of judicial review
between review in appeal and no review at all.... The half way review, the
extent of which is not always clear, creates uncertainty about judicial
intervention in administrative action. Sometimes, the courts may feel like
intervening because they feel strongly about the injustice of the case before
them; sometimes they are not sure of injustice and wish to give due
deference to the expertise of the administration and uphold the decision.27 It
is beyond the comprehension of the author how we can improve the contents
of the ultra vires doctrine by sociological research.
solutions to certain problems. For instance, there has been the perennial
problem of governmental control of business or non- governmental control.
private enterprise or public enterprise (or efficiency or inefficiency of the
one or the other), and individual liberty or governmental power; We may not
be able to answer these questions basic to any society through scientific
study.
He further says:
some instances the stating of the theories in testable form) has been
accomplished.30
I. It lays down a different and lesser emphasis upon legal doctrines and
concepts,
II. It seeks answers to a variety of broader questions,
III. It is not anchored exclusively to appellate case reports and other
traditional legal sources for its data, and
IV.
It invariably involves the use of research perspectives, research
designs, conceptual frameworks, skills, and training not peculiar to
law trained personnel.31
Basic Tools:
(1) It is time consuming and costly. It calls for additional training, great
commitment of time and energy, for producing meaningful result.
(2) It needs a strong base of doctrinal research. The researcher must have
strong base of legal doctrines, case law and legal institutions.
(3) It is extremely weak in solving a problem in hand; similarly it is not
effective where the law is to be developed from case to case.
(4) It cannot give a direction as to what course the law should follow to be
useful.
(5) It cannot remain unaffected from human vices, upbringing and thinking
because acceptance of a new system of law in India depends on many
factors such as awareness, value, capability and pattern of adaption.
37. The code of Law derived from the Koran and from the teachings and example of
Mohammed.
Shariah is only applicable to Muslims.
(e) INDUCTION AND DEDUCTION RESEARCH:
38. Hanson, Sharon, Legal Method and Reasoning (London: Cavendish, 2003) pp. 215-268
(f) OTHER KINDS OF LEGAL RESEARCH:
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 24 of 41
2. Statistical Research:
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3. Critical research:
(1) A statement of the significant facts of the dispute before the court –
the facts that are necessary to an understanding of the dispute and of
the court’s decision, those that influenced the court’s reasoning and
decision.
(2) A statement of a relevant procedural details such as the explanation
of the legal nature of the controversy and of the remedy sought,. The
actions and the ruling of the lower court.
(3) A statement of narrow legal question or issue(s) that the appellate
court was asked to resolve.
(4) A brief statement of the Appellate Court’s decision, both procedural
and substantive.
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 28 of 41
All big traders will have to get themselves registered in each State,
study the Sales Tax Acts of each State, conform to the requirements of
all State laws which are by no means uniform and, finally, may be
simultaneously called upon to produce their books of account in support
of their returns before the officers of each State. Anybody who has any
practical experience of the working of the sales tax laws of the different
States knows how long books are detained by officers of each State
during assessment proceedings.... The harassment to traders is quite
obvious and needs no exaggeration.
The criteria for determining the degree of restriction on the right to hold
property which would be considered reasonable, are by no means fixed or
static, but must obviously vary from age to age and be related to the
adjustments necessary to solve the problems which communities face from
time to time.... lf law failed to take account of unusual situations of pressing
urgency arising in the country, and of the social urges generated by the
patterns of thought-evolution and of social consciousness which we witness
in the second half of this century, it would have to be written down as
having failed in the very purpose of its existence.... In the construction of
such laws and particularly in judging of their validity the Courts have
necessarily to approach it from the point of view of furthering the social
interest which it is the purpose of the legislation to promote, for the courts
are not, in these matters, functioning as it were in vacuo, but as parts of a
society which is trying, by enacted law, to solve its problems and achieve
social concord and peaceful adjustment and thus furthering the ,moral and
material progress of the community as a whole.
In the famous Golak Nath v. State of Punjab, 44 Subba Rao, C.J., said:
But, having regard to the past history of our country. it could not
implicitly believe the representatives of the people, for uncontrolled and
unrestricted power might lead to an authoritarian State lt. therefore,
preserves the natural rights against the State encroachment and constitutes
the higher judiciary of the State as the sentinel of the said rights and the
balancing wheel between the rights, subject to social control.
A. Don’t just repeat your brief. Use the medium of personal argument to
accomplish things you cannot do with a written brief:
1. Be more personal and interactive -- have a conversation with the
court about the case.
2. Be more graphic -- use more personal language.
Appellate judges always say that they don’t want us to talk about the
facts and they don’t want us to make emotional arguments?
ANSWER TO FAQ:
Sure they say that. They learned that in the same law school classes
we did. But judges are notoriously unaware of what persuades them. And
judges, like everyone else, are persuaded by factual arguments with honest
emotional impact. Remember, every time we lose a case on “harmless
error” or “no preservation” grounds, the court is really telling us that
regardless of the legal issues, they don’t think it is fair to reverse our client’s
conviction. We win a lot more cases when we convince the court that
reversing is the fair thing to do. And fairness is a factual and emotional
argument -- not a legal doctrine.
The first 30 seconds of your argument will set the tone for
everything that follows. If you don’t use that time to define what the case is
about, the court will jump in with questions about whatever they think is
important. Then you will be stuck spending the entire argument discussing
issues defined by the court. Even worse, if you don’t immediately establish
the grounds for the argument, the court might sit quietly and wait for the
prosecution to tell them what the case is really about.
1. Start by telling the court what went wrong at trial. Why was the
conviction unfair?
a. Be direct
b. Be factual
c. Be graphic
d. Be concise
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 32 of 41
If after the first thirty seconds of your argument, the court does not
know exactly why you should win the case – you have do, re-do those first
thirty seconds.
1. If there are unpleasant facts or legal doctrines that you can’t get
around, then don‘t destroy your credibility by taking an impossible
position.
2. Be sure to prepare your argument by deciding what law and facts
you can’t avoid, and figuring out how to distinguish them.
3. Try to prepare answers in advance for the tough questions you
know you will be getting.
1. The first word out of your mouth should be either “yes” or “no.” It
is essential to give the court the impression that you are directly
answering the question. Otherwise the judges will keep asking that
same question over and over, and you will not be able to get on with
your argument.
2. After answering “yes” or “no,” elaborate or explain your answer.
The idea of “looping back” to your theory and theme at the end of an
answer is probably the most critical skill to develop when answering
questions. If you can do this successfully, you will control the subject that is
discussed after you finish answering the question, and you can have the
court spend most of its time thinking and talking about those aspects of the
case that you think are most important.
1. Never say, “that isn’t our case.” The court knows this.
2. Don’t be thrown off by the stupidity of the hypothetical.
3. Answer the hypothetical in a way that is consistent with winning
your case.
4. Don’t be afraid to agree with the questioning judge on aspects of
the hypothetical that don’t hurt your case.
5. Remember that it’s OK to point out that the hypothetical is based
on a faulty premise.
4. Rebuttal Argument
Only rebut if there was something in the State’s argument that you
believe should be answered. For example:
A. Never be subservient.
equal partner in the conversation. If you grovel, the court has no reason to
respect you or accept your arguments as the thoughts of an equal.
1. Be respectful, but not overly deferential.
2. Only flatter the court when they earn it.
******
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 36 of 41
CONCLUSION
4. Sri Shankeri Prasad Singh Deo Vs. Union of AIR 1951 S.C. 458 10
India (UOI) and State of Bihar
BOOKS REFERRED:
1) Legal Education and Research Methodology by Dr. Mono Purohit,
Central Law Publications
2) Sir William Holdsworth, A History of English Law, Vol. XIII at 125
(1966 reprint).
3) Edward.S.Crowin, The Constitution and What it means Today,
Preface at V (12th Edition, 1958)
4) P.M.Bakshi, Legal Research and Law Reform, ILI, First Reprint
2006.
5) Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research
Methods, 2009
6) S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487
(1972)
7) Benjamin Cardozo, The Nature of Judicial Process, 23 (1921)
8) N.D.Grundstein: Administrative Law and the Behavioural and
Management Sciences, 17th Journal of Legal Education – 122 (1964
– 65)
9) Roscoe Pound, Jurisprudence, vol. 1-3 (St. Paul, Minn., West
Publishing Co., USA).
10) M.D.A .Freeman, Lloyd’s Introduction to Jurisprudence (Sweet &
Maxwell, London, 6th edn, 1994), chap 7: Sociological Jurisprudence
and the Sociology of Law.
11) International Legal Center, Law and Development, 10, (New York,
1974)
12) Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
13) Upendra Baxi, Socio-Legal Research in India: A Programs rift 7
(ICSSR, 1975)
14) M.P.Jain and S.N.Jain, Principles of Administrative Law 363 (1973)
15) Kelsen, General Theory of Law and State 7 (1961)
16) K.C.Davis, “Behavioral Science and Administrative Law”, 17 J.
Legal Ed. 137 (1964-1965)
17) Ernest M Jones, Some Current Trends in Legal Research
18) Pauline V Young, Scientific Social Surveys and Research, (Prentice-
Hall of India, New Delhi, 4th edn, 1968),
19) Kierkegaard, (2007) in E-Contract Formation: U.S. and E.U.
Perspective
20) Pure Economic Loss in Europe, Bussani and Palmer, 2003
21) Hanson, Sharon, Legal Method and Reasoning (London: Cavendish,
2003) pp. 215-268
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 40 of 41
LEXICANS REFERRED:
STATUTES REFERRED:
JOURNALS REFERRED:
WEBSITES REFERRED:
(1) www.indiakanoon.org
(2) www.lawteacher.net
(3) www.lawyersclub.com
(4) www.ebc-india.com
(5) www.chilot.wordpress.com
(6) www.aallnet.org
(7) www.law.auckland.ac.nz
(8) researchguides.library.yorku.ca
(9) www.manupatra.co.in
(10) legalresearchprinciples.pbworks.com
(11) sociolegaldcu.wordpress.com
“Types of Legal Research needed for Law Reform” by
Sanjeyvignesh.J, Page 41 of 41
ARTICLES REFERRED: