ABSTRACT

Research means repeated search for something, to find out some different new things
or something special knowledge in the existing facts. Legal research is any systematic study
for that specific methodology which should be carried out. Method is the way of doing
something and Methodology is the science of a particular subject. There are different
methods of research that may be applicable in legal research. Usually legal research is
divided into Doctrinal and Non-Doctrinal research.
This paper discussed Doctrinal (Professors) and Non-doctrinal (Lawyers or
Empirical) Methods of Research to show The Legal Fraternity how to write with
understanding regarding the Merits, Demerits, and the Comparisons between doctrinal and
non-doctrinal legal research. Thus, the combination of methodologies, i.e., a mixed method
using ideological, social and legal, can work together to achieve a better understanding of the
law.
Keywords-- Research Methodology; Legal Research; Doctrinal; Non-doctrinal

Page | 1
 INTRODUCTION
Legal research is any systematic study for that specific methodology which should be
carried out. Legal academic researchers working within the context of advanced research
requires to understand how to explain and justify the process of conducting a "dogmatic
search." The word dogmatic comes from the Latin word, “dogmaticus,” which means to have
very strong beliefs or opinions about a topic and assert those beliefs. Thus, researchers need
to be able to interpret methodology in similar terms to those used by other disciplines. The
word doctrinal is derived from the word "doctrine," which is Latin for the word "doctrina,"
which means education, knowledge or learning. Research is basically a scientific systematic
investigation into and study of materials and sources in order to establish facts. The origin of
the word lies in the French word “re” meaning ‘’expressing intensive force” and “cerchier”
meaning “to search”. In a general sense it can be said that research includes gathering of data,
information and facts for the advancement of knowledge. But in a formal sense research is
performing a methodological study in order to prove a hypothesis or finding the answer of a
specific question. Research must be scientific, systematic, objective and must follow a series
of steps and a standard protocol1.

Legal Research is a Research pertaining to law. It is the systematic investigation of a

legal fact that increases the sum of knowledge pertaining to law. It is an addition of
something to an existing knowledge, or refute something into an existing knowledge. Law as
per legal research attracts judicial pronouncements, the prior stages of making and unmaking
law, historical antecedents, subsequent2.

There are different methods of research that may be applicable in law. They can be
characterized as multidisciplinary, doctrinal, empirical or non-doctrinal research. The main
two types of legal research are:

Doctrinal Research: It is a theoretical research and it is pure in nature. Conventional

legal sources like reports of committees, legal history, judicial pronouncements, facts passed
by legislature and parliament etc. are the sources of doctrinal legal research.3

1
Mona purohit; legal system and research methodology;CLP;3rd Edition 2014; Reprint 2015
2
http://www.academia.edu/15065282/Doctrinal_Legal_Research
3
Ibid

Page | 2
 Non-Doctrinal Research: It is also known as empirical research or socio-legal
research and relies on experience and observation. It is a trans-boundary research but its
foundation is on doctrinal research only. Non-doctrinal legal research tries to investigate
through empirical data, how law and legal institutions affect human attitudes and what impact
on society they create.4

WHAT IS RESEARCH?

“The acquisition of knowledge is the mission of research, the transmission of

knowledge is the mission of teaching, and the application of knowledge is the mission
of public service.”

– James A Stafford.

Research is combination of two words Re + Search which means the repetition of

search. According to plutchick Research means to go around as to explore. Research is the
process of collection of evidence or information for ascertaining an assumption or verifying
some hypothesis.5

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:

The Webster’s international dictionary defines research as “a careful inquiry or

examination in seeking fact or principles; diligent investigation in order to ascertain
something”.

In the words of Francis Bacon, “Research is a power of suspending judgment with

patience of mediating, with pleasure of asserting with caution, of correcting with readiness
and of arranging thought with scrupulous plan.”

4
Ibid
5
Legal Education and Research Methodology by Dr. Mono Purohit, Central Law Publications

Page | 3
 OBJECTIVES OF RESEARCH

Right from the evolution of human society, intellectuals of the society are always
inclined to probe for facts of the empirical world and to reveal the truth, “Every aspect of
human behaviours or facts of life has a problem. In 'society there were problems, there are
problems and there will be problems, we have to find out answer to those problems. Hence
this is the requirement of the society to conduct research.6

In simple words we can say research is a prerequisite for a dynamic society. To seek
the answer of a problem and development of society, research plays a significant role. Every
research is socially oriented, as research is always conducted for the betterment of
advancement of the society. It may discover new facts or test old existing facts. The aim of
research is to find out the truth which is hidden or unknown and which has not been
discovered so far.

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.

LEGAL RESEARCH IN GENERAL

Any systematic investigation, inquiry or search for information is research.

“Systematic investigation of problems and matters concerned with law is Legal Research”.

Legal research may be pursued to obtain better knowledge and understanding of any
problem of Legal Philosophy, Legal History, Comparative study of Law, or any system of
positive law. It is also very essential for writing text and teaching, for ascertainment of the
correct rules bounded by their limitations.

6
Khan, J.A. 2007 P-1

Page | 4
 OBJECTIVES OF LEGAL RESEARCH

One of the reasons for conducting legal research is to analyse the law by reducing,
breaking and separating the law into separate elements. It can be as simple as examining and
explaining new statutes and statutory schemes or as complex as explaining, interpreting and
criticising specific cases or statutes.

Another reason is “to fuse the disparate elements of cases and statutes together into
coherent or useful legal standards or general rules”.

The product of this research is legal standard that is consistent with, explains, or
justifies a group of specific legal decisions.

DOCTRINAL RESEARCH
Doctrinal research in law field indicates arranging, ordering and analysis of the legal
structure, legal frame work and case laws to search out the new thing by extensive surveying
of legal literature but without any field work. It involves a rigorous systematic exposition,
analysis and critical evaluation of legal rules, principles or doctrines and their inter-
relationship. It arranges the existing law in order and provides thematic parameters for such
an order. It also concerns with critical review of legislations and of decisional processes and
their underlying policy.7

NEED OF THE DOCTRINAL RESEARCH

To solve the legal problem with a new output within a short period of time with less
expenses by closely examining and analyzing the legal doctrine, legal framework and case
laws in a logical, systematic and scientific way .

Doctrinal legal research, thus, involves:

(i) Systematic analysis of statutory provisions and of legal principles involved therein, or
derived therefrom, and
(ii) Logical and rational ordering of the legal propositions and principles.

7
Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 2009

Page | 5
 The conventional legal approach to the law is all about doctrine. Legal academics
understand that the language of judicial opinions represents the law. The classical form of
legal scholarship was doctrinal research, in which a researcher examined the content of a
legal opinion to evaluate whether it was effectively reasoned or to explore its implications for
future cases. Doctrinal research was grounded in a descriptive premise that reasoned
argument from doctrinal premises actually explained judicial decisions. In other words this
type of research may also be called as “Traditional Research”.

In a doctrinal research, a legal scholar takes one or more legal propositions as a

starting point as focus of his study. Dr. S.N.Jain observed that “doctrinal Research involver’s
analysis of case law is arranging, ordering and systematizing legal proposition and study of
legal institution through legal reasoning or rational deduction”.8

SOURCES OF DOCTRINAL RESEARCH

Ordinarily conventional legal sources are used in doctrinal research. Scholar

undertaking doctrinal research takes secondary data relevant to his proposition. His sources
not only include Statutes or enactments – but also reports of committees; legal history,
judgment etc. Acts passed by state legislatures and parliament comes under this category of
sources. Judgments of Supreme Court and high courts also come under above mentioned
sources. They have primary authority. Text books, periodicals, commentaries also come
under sources of doctrinal research but they are not as authentic as original sources like
enactment and case published by authorized publisher.

AIMS AND OBJECTIVES OF DOCTRINAL RESEARCH

A doctrinal Research has following aims and objectives, namely:

To find the law in the legal statutes, subordinate legislations and judicial precedents.

i. Aims at consistency and certainty of laws.

ii. To some extent look into the purpose and policy of law that exists.
iii. Aims to study legal institutions like courts, police machinery, jails, tribunals etc.

8
S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)

Page | 6
 CONCEPT OF DOCTRINAL RESEARCH
Doctrinal research is concerned with legal prepositions and doctrines. The sources of
data are legal and appellate court decisions9.

Doctrinal research, also called traditional research, is not concerned with people
but with documents and differs from the non-doctrinal also called empirical research10 .

The doctrinal research means a research that has been carried out by way of analyzing
the existing statutory provisions and cases by applying the reasoning power, and that has
been carried out on a legal proposition or propositions.11

Doctrinal research involves analysis of case law, arranging, ordering and

systematizing legal propositions and study of legal institutions through legal reasoning or
rational deduction. One of the purposes of the traditional legal research is ascertaining a legal
rule for the purpose of solving a problem. Hence quality of doctrinal research depends upon
the source material on which the researcher depends upon for his study.

As the major portion of the research methodology concerns with the identification of
authoritative the sources and use of techniques to find them out, a doctrinal researcher should
know how to use a law library. The laws on social welfare have placed great burden on courts
of law, in a dynamic society. There will be gaps in statutes and the courts have to evolve
doctrinal principles, standards and norms, generally. Further, there will be ambiguity in the
statutory language. A word may become vague during its application to a particular case,
which appears to be clear during the enactment of law.12

A doctrinal research means a research of legal preposition by way of analyzing of the

existing statutory provision along with the present case laws by applying the reasoning power
of researcher. In doctrinal research, researcher mainly uses different judgment, treaties,
statutes texts, legal journals, magazines etc. and from he tries to collect all relevant material
on the topic and then with reasoning power, researcher tries to find out gap, problem and
draws out final conclusion. Doctrinal research which is sometimes referred armchair research
which is essential for a library base study as the material needed by a researcher may be
available in library archives and other data bases.

9
http://www.quora.com/In-methodlogy-what-is-doctrinal-research
10
Ibid
11
.http://lawdessertation.blogspot.in/2015/09/doctrinal-or-non-empirical-research.html
12
Ibid

Page | 7
  Dr. S.N. Jain observed that doctrinal research involves analysis of case law is
arranging, ordering and systematizing legal preposition and study of legal institution
through legal reasoning.13

 Doctrinal research is a theoretical study where mostly secondary source of data are
used to seek to answer one or more legal propositions or questions or doctrines. Its
scope is very narrow and there is no such need of field work.

 According to Cardozo law or legal propositions are not final or absolute. If it is found
to be unjust it may be modified or changed to meet the present requirement.

 This type of research is carried on by all judges, lawyers and law teachers.

SUITABLE EXAMPLES AND CASE LAWS

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 than
the theoretical researchers. According to Cardozo14 “law or legal propositions are not final or
absolute. They are in the state of becoming. Accepted norms or principles whether Statutory
or as principle of justice, equity and good conscience are applied again and again to test its
veracity or authenticity as a true principle of Law. If it is found to be
Unjust, it may be modified or changed to meet the present requirement.
For example, the Indian Penal Code, 1860 has declared that an attempt to commit
suicide is an offence and the person attempting to do so is punishable under that law. But in
Nagbushan Patnaik’s Case15 the Supreme Court had declared this provision is
unconstitutional as it is in violation of Article 21 of the Constitution of India which confers
on the people, the right to personal liberty. As interpreted by the Supreme Court the right to
personal liberty under Article includes the right to die as well and hence a person attempting
to commit suicide cannot be punished under the section of the Indian Penal Code.

13
Journal of the Indian Law Institute Vol. 17, No. 4 (October-December 1975), pp. 516-Published By: Indian
Law Institute

14
Benjamin Cardozo, The Nature of Judicial Process, 23 (1921)
15
P.Rathinam Nagbhooshan patnaik v. Union of India and another, A.I.R 1994 Pg. 1844

Page | 8
The Supreme Court has observed as follows:
"Section 309 of the Penal Code deserves to be effaced the statute book to humanize
our penal laws. It is a cruel and irrational provision and it may result in punishing a person
again (doubly) who has suffered agony and would be undergoing ignoring because of his
failure to commit suicide. Then an act of suicide cannot be said to be against, religion,
morality or public policy and an act of attempted suicide or attempt to commit it causes no
harm to others, because of which states interference with the personal liberty of the
concerned person is not called for. Thus Section 309 of the IPC violates Art. 21 and so. It is
void. May it he said that such View would advance not only the cause of humanization,
which is a need of the day. But of globalization also, adverse sociological effects are caused
by the death of the concerned person and not by one who had tried to commit suicide. Indeed,
those who fail in their attempts become available to be more or less as useful to the family as
they were. So the person to be punished is one who had committed suicide but he is beyond
the reach of law and cannot be punished. This provides no reason to punish a person who
should not be punished."

The problem of suicide is of controvertible nature. The question whether a person is

free to choose the manner and time of his own death has generated thought provoking debate
for a long time.

As the latest decision of the Supreme Court on the point, Gian Kaur v. State of
Punjab,16 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 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 Case17 and held that the right to life does not include a right to
die.

16
AIR 1996 SC 946: (1996) 2 SCC 448.
17
AIR 1994 SC 1844: (1994) 3 SCC 394.

Page | 9
Commenting on Administrative Law, Grundstein has observed:
“The creation of a body of law where none had hitherto existed is a social
achievement. It is to be an achievement not to be underestimated. It also serves as a reminder
that at particular periods in the history of law the creative working out of legal doctrine both
necessary and critical and justifiably a paramount concern of legal research.”18

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.19 Which can be made certain
and workable by evolving principle on the basis of research.

Ours is a welfare society is to adjust the conflicting interest of various components of

the society by applying the principle of "reasonable classification. But what is a reasonable
classification is in itself a matter of discussion and debate. Here the researcher can find out as
to what standard can be termed as reasonable classification- Likewise, as to what can
precisely be termed as ‘basic structure’ of the Constitution is not clear. It can be determined
by making a thorough enquiry into it. The task of a doctrinal researcher is not a purely
mechanical one.

While inferring a principle on the basis of available knowledge in the area of research,
he may apply logic, ethics, and requirements of the day and out of several alternatives, he
chooses the best one. i.e. the one which best serves the interest of the society. In modern
context, the doctrinal researcher has to find out and propose those principles, rules and
regulations which can serve the purposes what Roscoe Pound has termed as “social
engineering” as well as the existing doctrine/principles of law may become certain and stable
so that social goals may be achieved.

18
N.D.Grundstein: Administrative Law and the Behavioural and Management Sciences, 17 th Journal of Legal
Education – 122 (1964 – 65)
19
S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)

Page | 10
 If the researcher happens to be a judge he can give concrete shape and stability to the
legal principles by applying the principle of review or revision or overruling. A good number
of cases may be cited to substantiate this point of view, e.g. Shankeri Prasad20 and Sajjan
Singh’s Cases21 were overruled by Golak Nath Case22 which was subsequently overruled in
Keshavanand Bharati Case.23 Similarly a definite shape was provided by the Supreme Court
to the right of personal liberty as given in Article 21 of the Constitution in A.K.Gopalan’s
case.24 But its scope was widened in Menaka Gandhi25 and in subsequent other cases because
the Court was convinced that with the passage of time the meaning and scope of the right to
personal liberty has considerably widened since its decision in A.K.Gopalan’s case.

The Court has introduced changes not only in the area of Constitutional Law, but also
in the area of Labour law, Criminal law as well as Property Law. The Courts have held that
death sentence should not be imposed in all cases in which the offence of murder is
established, but only in rarest of rare cases. Death penalty is now an exception, life
imprisonment is the rule.26 Not only the execution of death sentence in public has been held
to be a barbaric act and that the person sentenced to death to also entitle to procedural
fairness till the breath of his life.27

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.

Most of the works of doctrinal researchers result in some concrete proposals for
problems in hand, but sometimes, it fails, especially when the subject is growing very fast or
when the research was undertaken merely to test the logical consistency and technical
soundness of a proposition.

20
A.I.R 1951 S.C. 458.
21
A.I.R 1965 S.C. 845.
22
A.I.R 1967 S.C. 1643.
23
A.I.R 1973 S.C. 1461.
24
A.I.R 1950 S.C. 27.
25
A.I.R 1978 S.C. 597.
26
. Jagmohan Singh v. Uttar Pradesh,
A.I.R, 1973 SC 947
27
Triveniben v. State of Gujarat,
A.I.R, 1989 SC 142

Page | 11
 ESSENTIAL CHARACTERISTICS OF DOCTRINAL RESEARCH

1. This type of research involves analysis of legal propositions or legal concepts.28

2. In this type of research a conventional source of data is used.

3. Legal propositions from enactments, administrative rules and regulations, cases of

courts etc. can be a part of doctrinal legal research.

4. Doctrinal Research includes research into legal concepts and principles of all types '
cases, statutes and rules. Doctrinal Research focuses on legal data gathered from case
laws, legislation, journal articles, law reform reports, parliamentary materials, policy
documents, relevant text books etc.

5. Doctrinal Research is a research “into” law and legal concepts and not “about” law. It
is theoretical and pure in nature and hence called arm-chair research.

6. Doctrine is a synthesis of various rules, principles, norms, interpretive guidelines and

values. The term doctrinal in case of doctrinal legal research is closely linked with the
doctrine of precedent.

7. Doctrinal Research is a research into the black letters of law. Here, ascertainment of
law is necessary.

8. Doctrinal Researcher makes his research based on secondary data which is relevant to
his proposition.

9. The study is mainly based on legal propositions (i.e. The reason for the decision
which is legally binding and creates precedent).

10. The sources of data for a doctrinal researcher are the reports of Appellate Courts and
conventional legal theory.

11. It is concerned with what the particular doctrine of law says and not as what made the
authority to say so or what has been the impact of that say.

28
Supra note 2

Page | 12
 TOOLS OF DOCTRINAL LEGAL RESEARCH

Statutory materials, subordinate legal materials and case laws constitute the primary
resource. While the secondary resources the researcher refers to are the textbooks, legal
articles, parliamentary debate, etc. for example, if someone has to undertake a study on the
Principles of Compulsory Licensing under the Law of Patents, then the relevant provisions of
the Patents Act, 1970, International Instruments pertaining to compulsory licensing, law on
compulsory licensing in different jurisdictions, Finding of the Courts, and Intellectual
Property Appellate Board like in the Matter of Application for Compulsory License by Natco
Corp., in C.L.A. constitutes primary sources. While the commentaries on the provision
pertain to compulsory license in standard text books, commentaries, articles in law journals,
news reports, blogs etc would constitute secondary sources.29

MERITS OF DOCTRINAL RESEARCH

1. In a doctrinal Research, the researcher is always engaged in research work, analysis

of case laws and judicial pronouncements etc. unlike that in case of non-doctrinal
research. Also, doctrinal research is less time consuming.

2. It provides the lawyers, judges and others with the instruments needed to reach a
legal decision.

3. Doctrinal legal Research helps in continuity, consistency and certainty of law. Such
a research contributes in our understanding of law, legal concepts, legal doctrines etc.

4. Such a Research provides quick answers to the legal problems.

5. Such a Research helps in pointing out the inbuilt loopholes, gaps, ambiguities or
inconsistencies in the substantive law.

6. Doctrinal Research always helps informing a strong and solid basis for the non-
doctrinal research.

29
Ibid

Page | 13
 7. Doctrinal Researcher systemizes the legal propositions that are a result of his
rational reasoning and critical analysis. In this process he may initiate a new Theory in
the concerned field of law.

8. Doctrinal Research helps in predicting how the legal principles, concepts or

doctrines would proceed in future.

9. In a doctrinal Research, the researcher is always engaged in research work, analysis

of case laws and judicial pronouncements etc. unlike that in case of non-doctrinal
research. Also, doctrinal research is less time consuming.

10. It provides the lawyers, judges and others with the instruments needed to reach a
legal decision.

11. Such a Research provides quick answers to the legal problems.

12. Such a Research helps in pointing out the inbuilt loopholes, gaps, ambiguities or
inconsistencies in the substantive law30.

DEMERITS OF DOCTRINAL RESEARCH

1. Doctrinal legal research is basically the result of individual analysis of a researcher

and the perception of a legal fact of one researcher may vary from another researcher.
However, each of these perceptions is equally convincing and logical. Thus, doctrinal
legal research is subjective in nature.

2. In the recent past where there has been an economic, political and social change,
more emphasis is given on the people and institution regulated by law. Law has been
attributed with the role of social engineering. There are a number of facts which lie
outside the legal system which may be responsible for non-implementation or poor
implementation of a given piece of legislation. But, doctrinal legal research do not look
into these factors. Doctrinal Research does not go beyond the sphere of law.

3. In many cases it is seen that there is a gap between the actual social behavior and the
behavior demanded by the legal norm. Doctrinal Research does not address these gaps.

30
Ibid

Page | 14
 4. Doctrinal legal researcher puts emphasis on traditional sources of law and judicial
pronouncements of appellate courts. The actual practice of lower courts and
administrative agencies with judicial and quasi-judicial functions remain unexplored
because their judgments are not reported.

5. In case of a doctrinal research, the researcher looks into statutory materials, judicial
pronouncements, case reports and principles or doctrines relating to it in order to
deduce legal propositions. His inquiry into law however does not get support from
social facts or values. As a result, these kinds of researches become merely theoretical
and far away from social reality. Such a research is incomplete and inadequate.31

NON-DOCTRINAL RESEARCH /SOCIO-LEGAL /EMPIRICAL RESEARCH

However, in the recent past, doctrinal legal research has received a severe jolt due to
change in the political philosophy of law from the laissez faire to the welfare state
envisaging socio-economic transformation through law and legal institutions, the
consequential new substantive and functional facets of law, and certain compelling
pragmatic considerations arising from this metamorphosis.

Non-Doctrinal research is fact oriented. Legal researcher undertaking non-doctrinal

research “takes either some aspect of the Legal decision process or the people and
institution supposed by regulated law.”32

Prominent reasons and arguments stressing the need for inquiry into social facets of law
are:
a. The emergence of sociological jurisprudence33 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

31
Ibid
32
Earnest.M.Jones, 2001. P-33
33
See, Roscoe Pound, Jurisprudence, vol. 1-3 (St. Paul, Minn., West Publishing Co., USA). Also see, M.D.A
.Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, London, 6th edn, 1994), chap 7:
Sociological Jurisprudence and the Sociology of Law.

Page | 15
 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 implementing it so that the Legislature, armed with
this feedback, can fulfill its job in a more satisfactory manner.
d. A number of facts or factors that lie outside a legal system may be responsible for
non-implementation or poor implementation of a given piece of social legislation.
e. There is nearly always a certain ‘gap’ between actual social behaviour and the
behaviour demanded by the legal norm and certain ‘tension’ between actual behaviour
and legally desired behaviour.

CONCEPT OF NON-DOCTRINAL RESEARCH

Non-doctrinal research, also known as social-legal research, is research that employs

methods taken from other disciplines to generate empirical data that answers research
questions. It can be a problem, policy, or a reform of the existing law. A legal non-doctrinal
finding can be qualitative or quantitative, and a dogmatic non-doctrinal finding can be part of
a large-scale project. The non-doctrinal approach allows the researcher to conduct research
that analyses the law from the perspective of other science disciplines, and to employ those
disciplines in drafting the law.34 For example, in the behavioral sciences, there is a standard
form of consumer contract that contributes to the study of psychological phenomena:

 Empirical Research exclusively relies on the observation or experience with hardly

any regard for theory and system.

 Such Research is data based which often comes up with conclusions that can be
verified through experiments or observation.

 Empirical research is also known as experimental type of research in which it is

important to first collect the facts and their sources and actively take steps to stimulate
the production of desired information.

 He/She formulates the experimental design which according to Him/Her would

manipulate the variables so as to obtain the desired information.

34
IJTRD6653paper.pdf

Page | 16
  This type of research is thus characterized by the researcher’s control over the
variables under study.

 Empirical research is most appropriate when an attempt is made to prove that certain
variables influence the other variables in some way.

 Therefore, the results obtained by using the experimental or empirical studies are
considered to be the most powerful evidences for a given hypothesis.

In this type of research the researcher first formulates a working hypothesis and then
gathers sufficient facts to prove or disprove the stated hypothesis

1. The tendency of consumers not to read the standard form contract,

2. The inability of consumers to evaluate the terms of the contract correctly once they do
read, and

3. The ability of sellers to deal with consumers. Because it uses non-sectarian legal
experimental data, it provides vital insights about the law in context, i.e. how the law
works out in the real world. Legal research is experimental and valuable in detecting and
explaining practices and procedures in legal and regulatory systems. It is also valuable in
the settling disputes, and impacts the legal phenomena of social institutions and
businesses. Similarly, experimental legal research in economics applies legal analysis,
statistical inference, and economic modeling, to the core areas of national and
international law, such as tort, property, contracts, criminal law, law enforcement and
litigation. Earlier research can be used to analyze the economics of legal negligence
theory.

NON-DOCTRINAL RESEARCH AS SOCIOLOGY OF LAW

A doctrinal researcher get his social policy, social facts and social values from 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

Page | 17
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.

Though sociology of law may have great potentialities, yet a few caveats must be entered
here.

Firstly, sociological research is extremely time consuming and costly, It has been
stated “Socio legal research is more expensive, it calls for additional training; and it entails
great commitments of time and energy to produce meaningful results, either for policy-
makers or theory-builders”.35

The decisions in human affairs. However, cannot await the findings of such studies and must
constantly be made, and herein comes the value and utility of doctrinal research. Thus,
“Doctrinal legal research...has had the practical purpose of providing lawyers, judges and
others with the tools needed to reach decisions on an immense variety of problems, usually
with very limited time at disposal”.36

Secondly, Socio-Legal research needs a strong base of doctrinal research. Upendra Baxi
rightly points out that “law-society research cannot thrive on a weak infra-structure base of
doctrinal type analyses of the authoritative legal materials”.37

The reason is simple. The primary objectives of the sociology of law are to reveal, by
empirical research. How law and legal institutions operate in society, to improve the contents
of law, both in substantive and procedural aspects, to improve the structure and functioning
of legal institutions whether engaged in law administration, law enforcement, or settlement of
disputes.

35
International Legal Center, Law and Development, 10, (New York, 1974)
36
Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
37
Upendra Baxi, Socio-Legal Research in India: A Programs rift 7 (ICSSR, 1975)

Page | 18
 Thirdly, sociological research may help in building general theories, but it seems
inadequate where the problems are to be solved and the law is to be developed from case to
case. For instance, as a matter of general theory it is axiomatic that governmental powers
need to be checked as “power corrupts and absolute power corrupts absolutely”, but too much
check may result in governmental ineffectiveness. This necessitates that when a case comes
before a court in which abuse of power by the executive is alleged, pragmatic considerations
ought to control the decision-making. Since the law to control governmental action develops
from case to case, it will not do to theorise that either there should be no control over
governmental action or there should be adequate control. That is why it has been said about
the ultra vires doctrine, which is the basis of judicial review in case of writs:

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.38 It is beyond the comprehension of the author
how we can improve the contents of the ultra vires doctrine by sociological research.

Fourthly, the function of law in society is not only to follow or adapt itself to public opinion
but also to give a lead and mould public opinion. When the law should follow one course or
the other may not always be answered on the basis of sociological data but on the basis of
one’s maturity of judgment, intuition, and experience, though sociological research may be of
some informational value to the decision-maker.

Fifthly, on account of complicated settings (and this particularly applies to economic

data) and variable factors, we may again be thrown back to our own pre-conceived ideas,
prejudices and feelings in furnishing 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.

38
M.P.Jain and S.N.Jain, Principles of Administrative Law 363 (1973)

Page | 19
 Kelsen Says: “The issue between liberalism and socialism, for instance, is, in great
part, not really an issue over the aim of society, but rather one as to the correct way of
achieving a goal as to which men are by and large in agreement, and this issue cannot be
scientifically determined, at least not today”.39

Sixthly, though law-sociology research is of recent origin, yet it is common

knowledge that even in the United States, where this kind of work has been done mostly,
such researches have yet to show their potentiality in terms of translating the findings into
legal propositions and norms. Amongst others, one reason may have been the failure to select
subjects with such potentialities. Any information has some value, but when huge resources
are to be staked in collecting sociological data it may be better to use them on carefully
planned subjects where the research may lead to ultimate improvement of the contents of the
law. Thus, with regard to decision-making research, Davis observes:

Research on decision-making excites many people, including Professor Grundstein,

and the quantity of such research is voluminous even staggering. A single-bibliography on
decision-making research fills a sizable volume.40

He further says:

The down-to-earth Behavioral Research Council concludes as to decision-making

research: “The major result in the field, to date, has been the development of a variety of
theories, the testing of which has only begun .... Little can be said about the usefulness of the
field until the testing (and in some instances the stating of the theories in testable form) has
been accomplished.41

ESSENTIAL CHARACTERISTICS OF NON-DOCTRINAL RESEARCH

1. It tries to find out the impact of non-legal events upon the legal decision.

2. It seeks to identify and appraise the degree of variables influence the outcome.

3. It tries to find out the effect of each decision on people and society as such legal
decision making. The field of empirical research is wider and the availability of

39
Kelsen, General Theory of Law and State 7 (1961)
40
K.C.Davis, “Behavioral Science and Administrative Law”, 17 J. Legal Ed. 137 (1964-1965)
41
Ibid

Page | 20
 authoritative sources are very less which involve several new techniques which are
unknown to the research.

4. This type of research is conducted to assess the impact of non-legal event on legal
provisions or law making process.

5. Variables which influence the legal process play an important role.

6. Consequences of any law or principle of law on the society can be traced.

7. Co-relation between law and other non-legal fact is the outcome of this research.

8. It lays different and lesser emphasis on doctrine.

9. It seeks answer to broader and more numerous questions.

10. It invariably involves the use of research perspectives, research designs, conceptual
frameworks, skills, and training not peculiar to law trained personnel.42

TOOLS OF NON-DOCTRINAL RESEARCH

i. Interview,43
ii. Questionnaire,
iii. Schedule,
iv. Interview guide,
v. Observation, participant or non-participant, and
vi. Published or unpublished materials (such as Census Reports, Reports of
Governmental and/or Non-Governmental Agencies, and appropriate literature on
sociology of law).44

42
Ernest M Jones, Some Current Trends in Legal Research
43
http://www.quora.com/what-is-non-doctrinal-legal-resaerch.
44
Pauline V Young, Scientific Social Surveys and Research
(Prentice-Hall of India, New Delhi, 4th edn, 1968),

Page | 21
 EMPIRICAL RESEARCH METHODS

1. DESCRIPTIVE RESEARCH: It includes describes phenomena, events, situations.45

It has two types:-

I. Quantitative study: It includes survey, correlational study, ex post facto study,

longitudinal study, cross sectional study and naturalistic observation.

II. Qualitative study: It includes case study, ethnography.

2. EXPERIMENTAL RESEARCH: It includes identifies cause-effect relationships,

quantitative. i.e. include Laboratory experiment, field experiment.

MERITS OF NON-DOCTRINAL RESEARCH

1. Non-doctrinal research enhances lawyer’s ability to understand the implications and

effects on the society.46

2. Legal researches can use social science methodologies themselves to investigate issues, or
they can collaborate with skilled researchers from other disciplines.

3. It highlights the gap between legislative goals and social reality and thereby depicts a true
picture of law-in-action.

4. It also highlights the gap in relation to the practice of law enforcers, regulators and
adjudicators and use or underuse of the law by intended beneficiaries of the law.

5. It highlights the reasons behind making the law ‘symbolic’, less-effective or ineffective.

6. In a doctrinal Research, the researcher is always engaged in research work, analysis of case
laws and judicial pronouncements etc. unlike that in case of non-doctrinal research. Also,
doctrinal research is less time consuming.

7. Such a Research provides quick answers to the legal problems.

45
http://lawteacher.net
46
http://blablawriting.com/doctrinal-and-non-doctrinal-research-essay

Page | 22
 DEMERITS OF NON-DOCTRINAL RESEARCH

1. Financial support is lacking.47

2. Other disciplines had shed away from the study of legal order has been shed away

3. Due to their preoccupation with their profession, the contributions of legal

4. Legal researchers lack a tradition that enables them to strengthen the empirical

5. Lack of training in the use of techniques of this empirical research. Most of the steps by
other disciplines academicians are very less research of research such as collection of data,
field work, formation of hypothesis, etc. are unknown to the legal researcher.

6. There is an unfavorable and arrangement attitude towards the empirical research. The use
of qualitative measurement techniques are very difficult to understand by legal researchers.

DIFFERENCE BETWEEN DOCTRINAL AND NON-DOCTRINAL RESEARCH

1. Doctrinal research lays much emphasis upon legal principles but non-doctrinal research
lays lesser emphasis upon doctrines.48

2. In doctrinal research, researcher uses traditional source for data but non-doctrinal research
is not solely dependent on traditional or conventional sources for data.

3. In doctrinal research scholar seeks to answer one or two legal propositions or questions, on
the other hand non-doctrinal research involves number of questions and large area.

4. Doctrinal research is a theoretical study but non doctrinal research involves empirical
study. 5. Mostly secondary source are used in doctrinal research and primary data are used in
non-doctrinal research.

6. Doctrinal research is concerned with legal propositions; on the other hand non-doctrinal
research is more concerned with social values and people.

47
Ibid
48
Supra note 1

Page | 23
 CONCLUSION

In conclusion, we can say that it is easy to target a specific Legal Research

methodology and identify its strengths and weaknesses. However, it must be noted that
doctrinal and non-doctrinal legal research are the ultimate way to find the answers that have
been raised in the context of attempts to understand the emerging issues in the framework of
the law.

There is no hierarchy between methodologies and they are all of equal importance for
the development and understanding of the law. What is crucial is that researchers must try
and equip themselves with the necessary skills to enable them to comfortably meet their
research objectives. Undoubtedly, a well-versed scholar will be aware of the advantages and
disadvantages of any particular methodology, and will work to obtain the benefits that result
from a better quality of work. Often, the combination of methodologies, i.e., a mixed method
using ideological, social, and legal, can work together to achieve a better understanding of the
law.

The socio-legal impact study of law on the basis of public opinion can bring practical
world problem to the policymaker's sight. But to make the public opinion mature, the
foundation again could be doctrinal research outcomes. Good opinion formation always
depends on how one has acquired right information about the subject matter.

Doctrinal legal researches give inputs for public to reach at well-informed decisions,
resulting in mature and right public opinion. The depository knowledge generated from
doctrinal legal researches could be basis for public opinion formation on legal reforms,
impact of particular law and those public opinions can be brought as data through the
empirical studies. To conclude, lots of good things can be generated harmonising doctrinal
and non-doctrinal legal research methods when it comes to taking the legal scholarship at
new height or solving the legal problems in real life situation.

Page | 24
 BIBLIOGRAPHY

1. Mona purohit; legal system and research methodology; CLP;3rd Edition 2014;
Reprint 2015
2. Legal Education and Research Methodology by Dr. Mono Purohit, Central Law
Publications
3. Khan, J.A. 2007
4. Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 2009
5. S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)
6. Journal of the Indian Law Institute Vol. 17, No. 4 (October-December 1975)
7. Benjamin Cardozo, The Nature of Judicial Process, 23 (1921)
8. P.Rathinam Nagbhooshan patnaik v. Union of India and another, AIR 1994 SC
1844: 1994 SCC (3) 394
9. Gian Kaur v. State of Punjab, AIR 1996 SC 946: (1996) 2 SCC 448
10. Rathinam Case, AIR 1994 SC 1844: (1994) 3 SCC 394
11. N.D.Grundstein: Administrative Law and the Behavioural and Management Sciences,
17th Journal of Legal Education – (1964 – 65)
12. Shankeri Prasad, A.I.R 1951 S.C. 458
13. Sajjan Singh’s, A.I.R 1965 S.C. 845
14. Golak Nath, A.I.R 1967 S.C. 1643
15. Keshavanand Bharati, A.I.R 1973 S.C. 1461
16. A.K.Gopalan’s, A.I.R 1950 S.C. 27
17. Menaka Gandhi, A.I.R 1978 S.C. 597
18. Jagmohan Singh v. Uttar Pradesh, A.I.R, 1973 SC 947
19. Triveniben v. State of Gujarat, A.I.R, 1989 SC 142
20. Earnest.M.Jones, 2001
21. Roscoe Pound, Jurisprudence, vol. 1-3 (St. Paul, Minn., West Publishing Co., USA).
22. M.D.A .Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, London,
6th edn, 1994), chap 7: Sociological Jurisprudence and the Sociology of Law.
23. International Legal Center, Law and Development, 10, (New York, 1974)
24. Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
25. Upendra Baxi, Socio-Legal Research in India: A Programs rift 7 (ICSSR, 1975)
26. M.P.Jain and S.N.Jain, Principles of Administrative Law 363 (1973)
27. Kelsen, General Theory of Law and State 7 (1961)

Page | 25
28. K.C.Davis, “Behavioral Science and Administrative Law”, 17 J. Legal Ed. 137 (1964-
1965)
29. Ernest M Jones, Some Current Trends in Legal Research
30. Pauline V Young, Scientific Social Surveys and Research (Prentice-Hall of India,
New Delhi, 4th edn, 1968)

WEBLIOGRAPHY

1. www.quora.com
2. www.lawdessertation.blogspot.in
3. www.academia.edu
4. IJTRD6653paper.pdf
5. www.lawteacher.net
6. www.blablawriting.com
7. www.indiakanoon.org
8. www.thelawdictionary.org
9. www.lawyersclub.com

Page | 26