DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH* S.N, Jain** I. Doctrinal research and social values LAW IS a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situations enforceable through the sanction of the state, What distinguishes law from other social sciences (and law is a social science on account of the simple fact that it regulates human conduct and relationship) is its normative character. This fact along with the fact that stability and certainty of law are desirable goals and social values to be pursued make doctrinal research to be of primary concern to a legal researcher. Doctrinal research, of course, involves analysis of case law, arranging, ordering and systematising legal propositions, and study of legal institutions, but it does more—it creates law and its major tool (but not the only tool) to do so is through legal reasoning or rational deduction, Even during the period when analytical positivism held its sway and the dominant legal philosophy was that judges did not create law but merely declared it, the truth was that much judicial creativity was going on. The development of common law by the common law judges is a cleat exam- ple of law-making by the judges. It has been commented upon the traditional view : While the traditional theory may appear more plausible in a period characterized by relatively stable conditions, as opposed to one in which great changes and developments are clearly evident, it is still difficult to see how one could literally believe the law to be a coherent and complete system, and the judicial process to be only a logical application of existing rules of law. Professor Cooperrider has made the plausible suggestion that the traditional theory was not intended as an accurate descriptive account of the judicial process : ‘...1 am also inclined to doubt that it is sound to think of it as a conscious attempt at scientific description. It did, however, represent a view which at one time was generally held as to the attitude which the judge should bring to his task: that it should be his objective to *This paper is a supplement to the author’s earlier paper, Legal Research and Methodology, 14 J.1.L.1. 487 (1972). *LLM., 8.J.D. (Northwestern), Director, The Indian Law Lastitute, New Delbi,1975] DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH deal with the case before him in that way which was indicated by an interpretation of existing authorities, rather than in that way which seemed to him on the facts to be the fairest or most desirable from a social point of view. It called for the subordination of his judg- ment to that of the collectivity of his predecessors, for a primary reliance on a reasoned extrapolation of accumulated experience.’ {The Rule of Law and the Judicial Process, 50 Mich. L, Rev. 505-06 (1961)]. According to this interpretation, the traditional theory represents more a practical regulative ideal of how the judicial process ought to be conceived by the judiciary than a theoretical analysis of its actual structure and functioning.’ 517 That even in the case-law method of research much creativity goes on is shown by Cardozo in his work, The Nature of the Judicial Process, His thesis is that law or legal propositions are not final or absolute but are in the state of becoming. He quotes Munroe Smith : The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment ; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible ; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested ; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined,* He himself says : Hardly a rule of today but may be matched by its opposite of yesterday... These changes or most of them have been wrought by judges. The men who wrought them used the same tools as the judges of today. The changes, as they were made in this case or that, may not have seemed momentous in the making. The result, however, when the process was prolonged throughout the years, has been not merely to supplement or modify ; it has been to revolution- alize and transform.? 1, Boonin, Concerning the Relation of Logic to Law, 17 Jour, of Leg. Ed. 155 at 158-159 (1964-65). Emphasis as in the orginal. 2, Quoted in The Nature of the Judicial Process 23 (1921). 3. Id, at 26-28,318 JOURNAL OF THE INDIAN LAW INSTITUTE {Vol. 17; 4 The two outstanding examples of the creativity of doctrinal research are the law of torts and administrative law. About the latter, for instance, it has been remarked : The creation of a body of law where none had hitherto existed is a social achievement. It is an achievement not to be under-estimated. It also serves as a reminder that at particular periods in the history of law the creative working out of legal doctrine is both necessary and critical and justifiably a paramount concern of legal research.* It may not be out of place to mention that in India it was the pioneering work of A.T. Markose on Judicial Control of Administrative Action and the seminars organised and the work done by the Indian Law Institute in the area of administrative law which had created an awartness of the importance Of the subject for the legal system. With the emergence of the sociological school, the creative role of law- yers and judges has come to be recognised explicitly. The writings of the sociological jurists coincided with the change in political philosophy from the laissez faire to the welfare state or were rather the result of this metamor- Phosis. One can see the seeds of the conception of law as a catalytic agent to advance human welfare in the following famous remarks of Justice Holmes : The life of the law has not been logic : it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the pre- judices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.* The writings of Dean Roscoe Pound, however, depict more clearly and forcefully the task of law to be the adjustment of human relationship in society to the best possible advantage. Thus, he says : For the purpose of understanding the law of today I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. T am content to think of Jaw as a social institution to satisfy social wants—the claims and demands and expectations involved in the existence of civilized society—by giving effect to as much as we may with the least sacrifice, 4, N.D. Grundst ative Law and the Behavioral and Management 17 Jour. of Leg. Ed. 121 at 122 (1964-65). 5. Oliver Wendell Homes, The Common Law 1 (1881).1975) DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 519 so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organised society. For present purposes 1 am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests ; a continually more com- plete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering.* At another place he says: As the saying is, we all want the earth. We all have a multiplicity of desires and demands which we seek to satisfy. There are very many of us but there is only one earth. The desires of each con- tinually conflict with or overlap those of his neighbours. So there is, as one might say, a great task of social engineering. There is a task of making the goods of existence, the means of satisfying the demands and desires of men living together in a politically organised society, if they cannot satisfy all the claims that men make upon them, at least go round as far as possible. This is what we mean when we say that the end of law is justice....We mean such an adjustment of relations and ordering of conduct as will make the goods of existence, the means of satisfying human claims to have things and do things, go round as far as possible with the least friction and waste.” The task of law as that of “social engineering” has come to be accepted as a dogma by the civilized societies all over the world including India. The chapters on fundamental rights and directive principles of state policy of the Constitution of India embody this philosophy. The concern of law as an instrument of economic and social justice has grown to such an extent that there is hardly any human conduct which has been left untouched by law. The result is that there has been an explosion of laws and the law has become all pervading. We have come to live in an age of laws. The legislative mill has been constantly pouring out laws. This is not the only factory for producing statutory laws. The executive made law (delegated legislation) has become much more important both quantitatively and qualitatively. The present emphasis of Jaw on achieving the social welfare of the people along with the fact of great economic and technological advancements have Placed great burdens on law and the courts of law. Because of the necessity 6. Roscoe Pound, Introduction to the Philosophy of Law 47 (1963). 7, Roscoe Pound, Social Control Through Law 64-65 (1968).520 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 17:4 to enact laws on complex and diverse subjects it has become inevitable for the legislature to leave gaps in the statutes and deliberately give discretion to the courts to evolve doctrines, principles, standards and norms themselves in the process of application of the law from case to case. Further, the complexity of laws has given scope for ambiguities in the statutory language ‘or scheme. Then a word used in a statute, which may appear to be fairly clear at the time of enactment of the statute, may acquire vagueness when the occasion of its application to a case by the court arises. Similarly, the plain statutory language may lose its plainness at the time of actual con- troversy because of the human limitation to forsee all the difficulties and nuances of the problem. A few examples may be taken from the Indian statute book to illustrate some of these points. ‘An example, par excellence, of the legislature conferring discretion on the courts is that of article 19 of the Constitution which permits the state to impose reasonable restrictions on the various rights guaranteed to the citizens by that article. There is no definite test to judge the reasonableness of a restriction, and the Supreme Court itself has stated : In evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self- restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, that the majority of the elected representatives of the people have in au- thorising the imposition of the restrictions, considered them to be reasonable,* In considering reasonableness of a restriction the task before the courts is to judge the objective of public interest to be served by the restriction against fairness to the individual. The Indian statute book is replete with provisions where the legislature has given discretion to the courts to develop the law from case to case, A few examples may be given here. Use of such phrases as “just and equita- ble”,® “public order”, “inexpedient”™ “reasonable opportunity of being 8 State of Madras v. V.G. Row, ALR. 1952 S.C. 196 at 200, 9, S, 433 of the Companies Act, 1956. 10. $,3 of the Maintenance of Lateral Sesurity Act, 1971. 10a. S, 7-A of the U.P, (Temporary) Control of Rent and Eviction Act, 1947.1975) DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH $2 heard’? “reasons to believe”,’* “undue and unreasonable preference”,”* “acting under colour of office’’,!* “reasonable. sum”,!® “rash or negligent act”’,* “reasonable apprehension”,!” “reasonable cause’’,"* “oppression and mismanagement”,’® are only a few of the illustrations amongst the host of statutory provisions. Also even such words or phrases as “sale” for sales tax purposes, “interstate sale”, “annual letting value”, “fraud” for declaring me “industrial dispute”, “business expenses", a marriage as “nullity”, “industry” “best judgment assessment”, “obscenity” and innumerable such other phrases have presented a wide scope for the exercise of judicial discretion. It may not be wrong to say that the amorphous mass of the present day statu- tory provisions take concrete shape and form in the great laboratories of the law courts, and this applies even to those statutory provisions which appeared to be precise, articulate and clear at the time of their enactment. The fact is that “‘all rules have a penumbra of uncertainty where the judge raust choose between alternatives”! Apart from this, while interpreting certain clauses, the judiciary itself has evolved certain standards which are vague and flexible. Three good examples in this respect from the area of constitutional law are “reasonable classification” under article 14, “‘direct and indirect restriction” under part XII of the Constitution, and ‘the basic featare theory” for purposes of amending the Constitution. A few branches of the law have been more or less entirely developed by the judiciary. The two modern illustrations are labour law and administrative law. Taking a leaf from administrative law, such judicially created phrases as “excessive delegation” (to test the validity of the delegated legislation) or “‘ulfra vires’ (to test the validity of adminis- trative action) or “no legal evidence rule”, or “error of law apparent on the face of the record” leave an area of wide discretion for the courts to operate. In doing so they have to draw nice lines between, and balance, the interests of the individual to protect him from arbitrary government and administra- tive effectiveness and public interest. The application of these phrases in a given situation calls for a great deal of value judgment and “painful adjustment of conflicting values”.2° 11, This phrase is used in innumerable statutes, see particularly, article 311 of the Constitution of India. 12, S. 147 of the Income Tax Act, 1961. 13. $, 28 of the Indian Railways Act. 14. §, 99 of the Indian Penal Code. 15, S, 74 of the Indian Contract Act. 16. 5. 304-A of the Indian Penal Code. 17. S. 10 of the Hindu Marriage Act, 1955, 18. Ibid. 19. Ss, 397 and 398 of the Companies Act, 1956. 19a, Hart, The Concept of Law 12 (1961), 20, Friedmann, Law in a Changing Society 384 (1972),52 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 17: 4 A brief survey of the statutory provisions leads to one inescapable con- clusion, In modern times, case-law based research is concerned to a very large extent with considerations of social value, social policy and the social utility of law and any legal proposition. It is naive to think that the task of a doctrinal researcher is merely mechanical—a simple application of a clear precedent or statutory provision to the problem in hand, or dry deductive logic to solve a new problem, He may look for his value premises in the statutory provisions, cases, history, in his own rationality and meaning of justice. He knows that there are several alternative solutions to a problem (even this applies to a lawyer who is arguing a case before a court or an administrative authority) and that he has to adopt one which achieves the best interests of the society. The judges always unconsciously or without admitting think of the social utility of their decisions, but cases are also not infrequent when the Indian Supreme Court has consciously and deliberately incorporated social values in the process of its reasoning. To take afew examples here, in Bengal Immunity Co. v. State of Bihar,® the court while overruling State of Bombay v. United Motors,” stated : 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 harass- ment to traders is quite obvious and needs no exaggeration.” In Jyoti Pershad v. Union of India, the Supreme Court observed : 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....If 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 21. ALR. 1955 S.C. 661. 22, A.LR, 1953 S.C. 252, 23, Supra note 21 at 687. 24. ALR. 1961 S.C. 1602,1975) following observations of Bhagwati, J., i DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 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 adjust- ment and thus furthering the moral and material progress of the community as a whole.® In the famous Golak Nath v. State of Punjab,** 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. It, 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.?? The court’s concern with social justice is depicted forcefully in tl in Kanwarlal y. Amarnath :* This produces anti-democratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party or individual who is without any links with affluence or wealth. This would result in serious discrimination between one political party or individual and another on the basis of money power, and that its turn-would mean that “some voters are denied an ‘equal’ voice and some candidates are denied an ‘equal chance’ ‘The democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, however lowly or humble he may be, should be able to participate on a footing of equality with others, Individuals with grievances, men and women with ideas and vision are the sources of any society’s power to improve itself. Government by consent means that such individuals must eventually be able to find groups that will work with them and must be able to make 25. Id, at 1613. 26, A.LR. 1967 S.C, 1643, 27, Id, at 1655, 28 A.LR, 1975 S.C, 308. 523 he324 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 17: 4 their voices heard in these groups and no group should be insulated from competition and criticism. It is only by the maintenance of such conditions that democracy can thrive and prosper and this can be ensured only by limiting the expenditure which may be incurred in connection with elections, so that, as far as possible no one single political party or individual can have unfair advantage over the other by reason of its larger resources and the resources available for being utilised in the electoral process are within reasonable bounds and not undully disparate and the electoral contest becomes evenly matched. Then alone the small man will come into his own and will be able to secure proper representation in our legislative bodies. The other objective of limiting expenditure is to eliminate, as far as possible, the influence of big money in the electoral process. If there were no limit on expenditure, political parties would go all out for collecting contributions and obviously the largest contribu- tions would be from the rich and affluent who constituie but a fraction of the electorate. The pernicious influences of big money would then play a decisive role in controlling the democratic process in the country. This would inevitably lead to the worst form of political corruption and that in its wake is bound to produce other vices at all levels.?* Finally, while considering the judges’ role in determining questions of “public policy”, Mathew, J., said in Murlidhar v. State of U.P. 3% There is no alternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does not absolve the judges from the duty of doing so. In conducting an enquiry...judges are not hidebound by precedent. The judges must look beyond the narrow field of past precedents, though this still leaves open the question, in which direction he (sic) must cast his (sic) gaze. The judges are to base their decision on the opinions of men of the world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beyond the jurisprudence and that in so doing, they must consult not their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judges must consider the social consequences of the rule prop2anded, especially in the light of the factual evidence ayailable as to its probable results.”” 29, Id.at 314-15. 23a. AER, 1974 8.0, 1924, 29b, Id, at 1930.1935) DOCTRINAL AND NON-DOCTRINAL LEGAL KESEARKCH 325 Thus, the objective and philosophy of doctrinal researcher has to be the same as that of sociological jurisprudence, that is, social engineering through law. In this sense be is a sociological jurist, though it is tue that his liberty of operation is restricted to some extent by the statutory language, existing doctrines and also the consciousness that a sound legal system should move towards certainty and stability of law which are social values to be desired. But, as seen above, the law in modern times leaves a large scope, a large leeway, and the leeway may be more in some cases and less in others but it is there, for moulding and adapting it to the needs of the society and to social change. This has been additionally facilitated in India by the Supreme Court expressly agreeing as a principle to review its own decisions, and a number of instances can be cited where the court has done so. Ihe process began with the court overruling the United Motors case” in the Bengal Immunity case" and its high watermark was reached when in the famous Golak Nath case,™ it overruled its consistent holding in the two earlier cases— ‘Shankari Prasad® and Sajjan Singh.* A few other instances of such overruling are: Director of Rationing v. Corporation of. Catcutta®* by Superintendent and Remembrancer of Legal Affairs y. Corporation of Calcutta ;** Indian “Airlines Corporation v. Sukhdeo Rai? by Sukhdev Singh v. Bhagatram ;* ‘Sardarilal v. Union of India®* by Samsher Singh v. State of Punjab.” ‘Any umber of cases can be cited when the court without expressly overruling its earlier decisions departed from them or weakened their authority or modified the principles laid down (sometimes in the garb of developing them further), Such cases are demonstrative of the fact that the language of the statute is not petrified for all times to come and its megning and impact change in the catalytic hands of the judge. The author is not unmindful of the fact that sometimes a doctrinal researcher may lack an utilitarian approach, and his sole concern may be to test the logical consistency and technical soundness of a case or a legal proposi- tion by analysing it with reference to the precedential symmetry and on the anvil of strict literal meaning (by keeping grammar and dictionary in’ one hand and the statutory language in the other). Technical soundness of the 30. State of Bombay v. United Motors, supra note 22. 31, Bengal Immunity Co. v. State of Bihar, supra note 21. 32, Golak Nath v. State of Punjab, supra note 26, 33, Shankari Prasad v: Union of India, A.1LR. 1951 S. 34. Sajjan Singh v. State of Rajasthan, A.1.R. 1965 8. 35, A-LR. 1960 S.C. 1355, 36. ALR, 1967 S.C, 997. 37, ALR. 1971 S.C, 1828, 38, ALR, 1975 S.C. 1331. 39, A.LR, 1971 S.C, 1547, 40, A.LR, 1974 S.C. 2192, . 458. 845,536 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 17:4 law is not unimportant but it should not operate in vacuum and ought to be balanced, wherever there is scope, against social policy and mores of the society. Il. 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 certainly add value to his research if he gets an opportunity to test his ideas by sociological data. And this is what the author understands by the sociology of law. 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. It seeks answers to such questions as—are law and legal institutions serving the needs of the society? Are they suited to the society in which they are operating? What factors influence the decisions of adjudicators (courts or administrative agencies)? Are the laws properly administered and enforced (or do they exist only in text-book)? 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” where the major tools of a legal researcher are empirical and sociolo- gical 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.”"" 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.” In this context K.C. Davis also observes : 41, Law and Development 10 (1974, published by the International Legal Centre, New York). 42, Vilhelm Aubert (Ed.), Sociology of Law 9 (1969).i975) DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH sot [I]t may bea hundred or several hundred years before we get truly scientific answers to some of the questions I am trying to explore, and we need to make some judgments in the meantime, Some of the most useful thinking can be unscientific, impressionistic, intuitive based on inadequate observation or insufficient data or wild guesses ot imagination. Scientific findings are obviously the long term objective, but a good many judgments which fall far short of scien- tific findings are valuable, respectable and urgently needed.** Secondly, law-sociology research needs a strong base of doctrinal research. Upendra Baxi rightly points out that “Jaw-society research cannot thrive on a weak infra-structure base of doctrinal type analyses of the autho- titative legal materials”. 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 (adjudicatory process), and these objectives cannot be achieved unless the researcher has in-depth knowledge of the legal doctrines case law and legal institutions. Further, such a knowledge is essen- tial for identifying issues, delimiting areas, keeping the goals in view, and determining the hypotheses on which to proceed. In the absence of these, the sociological research will be like a boat without a rudder and a compass, left in the open sea. The whole exercise may be a fruitless one. The authors of the monograph on Law and Development were perhaps conscious of this when they said : [W]e should make clear that we do not denigrate doctrinal research, which has a proud tradition of outstanding scholarship. Nor do we seek to minimise the importance of doctrinal research to the establishment and functioning of a legal system and thus to society. ‘We are also conscious that in many of the countries we were con- cerned with, there is an absence of basic doctrinal research and indeed not infrequently the tools and raw materials of such research. While the situation varies between countries, we recognise that in some countries doctrinal research could claim a high priority in allocations of the resources available for legal research.*® In India where we still lack the infra-structure of doctrinal research, such a research will naturally have to claim high priority. 43. K.C, Davis, Behavioral Science and Administrative Law, 17 Jour. of Leg. Ed. 137 at 151-52 (1964-65), wisi Upendra Baxi, Socio-Legal Research in India: A Programschrift7 (LCSS.R.y 45, Supra note 41 at 19,528 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 17:4 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, prgamatic considerations ought to control the decision-making. Since the law to control governmental action develop 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 injus- tice of the case before them ; sometimes they are not sure of injustice and wish to give due deference to the expertise of the administra- tion and uphold the decision.‘ It is beyond the comprehension of the author how we can improve the contents of the ultra vires doctrine by sociological research, To illustrate the point by another example, take the case of the concept of “sale” for purposes of sales tax. The tax is imposed only on sale and not on a contract for labour or service. Now every sale of a commodity does involve some labour, Still there may be clear cases of sale and clear cases of labour con- tract (or works contract) but there may be innumerable penumbral situations where it will be difficult to say on which side a particular transaction falls. Fourthly, the function of law in society is not only to follow or adapt itself to public opinion (assuming that it is possible to know correct public opinion) but also to give alead 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 enter- prise or public enterprise (or efficiency or inefficiency of the one or the 46, M.P, Jain and S.N, Jain, Principles of Administrative Law 363 (1973).1975] DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 529 other), and individual liberty or governmental powers, We may not be able to answer these questions basic to any society through scientific study.!? Even if one were to attempt such’a study, it would require such huge resources (owing to the vastness of the subjects of inquiry) that one may not be able to have them at one’s command. Coming to a lower plane, under part XI of the Constitution, states cannot discriminate against interstate commerce, but at times it is not easy to determine whether there has been discrimination or not and an empirical study may also not easily furnish the answer. ‘This is clear from the following extract from an article by the author : In determining the validity of a law against a challenge on account of discrimination against interstate commerce, multiple taxation of such commerce, or undue burdens on it, the judiciary has an im- portant though a difficult role to play. Should the Court go merely by patent or formal discriminations ? Should it cut deeper and go behind the avowed purpose of the law and attempt to find out its actual effects? Should it examine the law in question in the context of the entire economy ? For example, state A imposes a fifteen per cent tax on cost of alcoholic liquor manufactured in that state, Now state B, which is importing liquor from state A, imposes a tax of twenty per cent on liquor manufactured within it. How much tax should state B impose on imported liquor? One view could be that it should impose a tax of twenty per cent (i.e. the same per- centage of tax which it is imposing on intrastate liquor). Another view which could be taken is that it should impose a tax of only five per cent as a higher tax would put a greater burden on the . imported liquor than the intrastate liquor and would be discrimi- natory against the former. There are several limitations in the latter approach. First, since the intrastate tax on liquor is likely to differ from state to state, the importing state will be required to impose different taxes on imported liquor depending on the state from which it is coming. It is doubtful whether such a tax would be possible to administer. Second, if the tax involved is other than excise, say, sales tax, it may be practically difficult for the importing state to know the amount of tax which an imported commodity has actually borne in the exporting state. The structure of sales tax differs from state to state. In some states the system is multiple point, in some two point, in some single point on the first sale and in some single point on the last sale. The incidence of local sales tax on a commodity exported to another state will depend on the 47. 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.” General Theory of Law and State 7 (1961).536 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 17:4 system of sales tax in that state and the number of local sales. If equality is to be achieved in the sense suggested above, then it would not only mean the different rates on the sale of the same imported commodity within a state depending upon the state from which it is imported but also the rates would have to vary on a commodity from the same state depending upon the number of local sales in that state—a practical impossibility. Third, if real equality is to be attained in the example relating to liquor, why stop only at the excise duty. Why not consider all other taxes like the property tax and the taxes on the raw materials going into the manufacture of liquor .which will have an impact on the cost of production of the liquor. Under the equality formula suggested above, these should also be taken into account by the importing state.‘ In spite of the readiness of the United States Supreme Court to be recep- tive to economic and social data, the following quotation again is indicative of the difficulties in this regard : In the United States, in the non-tax area the Supreme Court usually goes deeper into various factors in order to determine whether the Jaw was placing an “undue” burden on interstate commerce which “frequently entails weighing evidence, drawing nice lines, and mak- ing close and difficult decision on important policy questions.” However, in the tax area, probably because of greater difficulty in evaluating complicated economic factors involved, this has not been the general approach Sixthly, though law-sociology research is of recent origin, yet it is com- mon 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 Profes- sor Grundstein, and the quantity of such research is voluminous— 48, S.N. Jain, Freedom of Trade and Commerce and Restraints on the State Power to Tax Sale in the Course of Interstate Trade and Commerce, 10 J.1.L.{. 547 at 563-64 (1968). 49. Id, at 565-66.1995) DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH su even staggering. A single bibliography on decision-making research fills a sizable volume. 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." Upendra Baxi, in an otherwise excellent paper, also seems to commit the error of suggesting some of the socio-legal research topics without stating the objectives or hypotheses from the point of their possible uses to the legal community and law reformers, or how the researches in those subjects may improve the normative content of the legal system or the structure of the legal institutions. This is a major weakness of his paper, though, of course, the collection of information on the lines suggested by him may be valuable for its own sake. Taking at random three projects suggested by Baxi, comments may be made on them. He says : We do not have organised information on turnover, in number and type, of legislative enactments in different states ; of time-lags bet- ween initiation of bills, their passage through the House, the inter- vening work of joint select committees, and the time-lags between passage and the gubernatorial or the Presidential assent to the bills. Much less do we have any information on the quantity of amending and repealing legislation, or of the private member's bills. It is not understood where Baxi wishes to lead a legal researcher or a Jaw reformer from the kind of information that he would like to be collected, that is, what are the goals of such a research? It may also be said that with regard to the turnover of legislation it would not be difficult to find out the same from the annual reports of the Ministries of Law of the states, the state gazettes, and various other private publications. Similarly, with regard to private member’s bills, the facts are common knowledge, though we may not have complete and accurate information (and it seems to be a futile task to obtain this kind of “accurate” information). With regard to the question of time taken and the intervening work of the joint select committees 50, Davis, supra note 43 at 142, 51, Ibid, 52, Baxi, supra note 44 at 25,532 JOURNAL OF THE INDIAN Law instiTuré ton, 17:4 it is not clear as to what he wants. Does he want quick passage of Bills, excluding the joint select committees from consideration of Bills or does he want that there should be greater democratisation in the sense of greater public participation of the affected interests through the joint select com- mittees ? Here, perhaps, fruitful results may come out if one were to examine Bills from the latter aspect and concentrate on why in some cases Bills were 1eferred to the joint select committees but not in others, since consultation of affected interests in enacting a statute is a social goal to be achieved, Further, Baxi points out: “Nor do we have (although useful beginings have been made in this direction by political scientists) much data on the social profiles of national and state legislators”. Here again one is left without any idea as to how this kind of information will be of qualitative value to law researchers or law makers or how it will help in improving the character and composition of the legislature. Does he want some kind of educational or professional test to be laid down for the legislators? With the emergence of the party system and the situation where party discipline counts more than “‘intelligence”, and the reality of the executive controlling the legislature, it is again not understood what useful purpose will be served by collecting such a kind of information. To some extent the information on the lines desired by Baxi is available in the various ,“Who’s Who”.5 Further he says : Disregarding fine distinctions between administrative ‘tribunals’ and other administrative adjudicatory bodies, it would be scientitically rewarding and socially relevant to examine typology of litigants before a few selected tribunals/bodies.* One fails to understand how the study of typology of litigants will lead one to understand the role of the tribunals in the social context, and in any case it is well known what types of litigants use these tribunals (easy recourse is one of the virtues of these bodies). The objectives of establishing these bodies are accessibility, cheapness, expertise, expedition and lack of formality. 1t would be much more rewarding and useful to study these bodies with a view to finding out as to how far these social objectives have been achieved in practice (it may be pertinent to point out that some work on these lines is being done by the Indian Law Institute). Perhaps Baxi wants to be modest in his research programme by suggest- ing that at the initial stages we should try to gather facts about the formal 53, Id, at 26. 54. See, for instance, Rajya Sabha, Who's Who (1974), Also; See, Socio-Economic Backgiound of Legislators in India (prepared by Research and Information Service, Lok Sabha Secretariat), 21 Jour. of Parl, Inf, 23 (1975). 55, Supra note 44 at 31.1975] DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 333 legal system, the knowledge of which we seem to lack woefully. To substantiate him, the author would like to mention an anecdote. A few years back he was talking to the chairman of a tribunal which has been in existence for a number of years. He was a man of law. He told the author that he learnt for the first time that there’ was such a tribunal when he was offered its chairmanship by the government. The suggestion made by Baxi opens up infinite possibilities for research work and any area or subject can be taken up for fact collection depending upon the researcher’s own equip- ment, specialisation and value judgment in terms of priorities. ‘The author’s own priorities will be the study of administrative process and adjudication including their procedures, administration of the social welfare legislation and Jand legislation, and operation of social legislation like marriage and untouchability. Finally, a word may be said about research methods in collecting empiri- cal data. It has been said: “In terms of a gross division, there are only three methods of obtaining data in social “research: one can ask people questions ; one can observe the behavior of persons, groups or otganisations, and their products or outcomes ; or one can utilise existing records or data already gathered for purposes other than one’s own research."®* The author is not trained in scientific methods of collecting data and whatever little is said is based on common knowledge. A socio-legal researcher can get much valuable information by his own observations and by studying existing records, (here the problem lies in getting access to the records, since the government is extremely chary of permitting anyone to see its records), but a note of warning may be sounded against the method of collecting data by interview. Two broad types of data collected through personal interviews are factual information and opinions and views about a particular matter, About the limits of this mcthod it has been stated : One of the limitations .f the interview is the involvement of the individul in the data he is reporting and the consequent likelihood of bias. Even if we assume the individual to be in Possession of the certain facts, he may withhold or distort them because to com- municate them is threatening or in some manner destructive to his ego. Thus, extremely deviant opinions and behavior, as well as highly personal data, have long been suspect when obtained by per- sonal interviews... Another limitation on the scope of the interview is the inability of the respondent to provide certain types of informa- tion....Memory bias is another factor which renders the respondent unable to provide accurate information.® 56. Festinger and Kats (3d,), Research Methods in the Bchavioral Sciences 2A1 (1953), 57. Cannell and Kahn, The Collection of Data by tnterviewing, id. at 330-31.534 JOURNAL OF THE INDIAN LAW INSTITUTE {Vol 17:4 A few other limitations-are the problems of communication process, motivation of the respondent and his general ability, expertise of the inter- viewer, the clarity of research goals, efc. Comparatively speaking, an interviewer may be able to get information of much greater utility when it relates to facts (but not relating to the respondent) than opinions and views. We have to be extremely cautious with opinionated data collecting. “Opinion” may mean the opinion of one ignorant individual multiplied by acertain multiplier of the same quality. This is very aptly demonstrated by an empirical study of the Indian Law Institute on “Assessing the Degree and Depth of Acceptance of the System of Law in India in terms of (i) ‘Awareness, (ii) Value Compatibility, and (iii) Pattern of Adaptation”.** Thus, one of the conclusions of the study is : It is significant that those categories which have a lower level of awareness also show a lower degree of acceptance: of values inherent in the present legal system. Their views regarding various procedural matters and problems and bottlenecks in the legal system also show certain stable patterns. But it is amazing that it is these categories which have the highest percentage of those who say that the present legal system is “perfectly suitable” for Indian society. This seems rather intriguing. But the explanation perhaps is that those groups who have higher levels of awareness of the legal system and who share the values implicit in it to a larger extent, are at the same time more conscious of its maladjustment with the overall socio-cultural fabric. ‘This study in India was perhaps the first of its kind in the area of socio-legal research, but it should create an awareness as to what a socio-legal researcher should not do because of its utter failure to throw any light on how the Indian legal system isto be improved or adapted to the value patterns of the Indian people (apart from the value of the study as signifying some of the too well-known weaknesses or defects of the system). To conclude, what is stated above is not to undermine the value of the sociology of law (it can and ought to be used as a valuable supplement or adjunct to doctrinal research) but to warn against the over-optimism of its advocates to expect too much from it. To borrow the language from the International Legal Centre monogtaph on Law and Development, [It is important....to appreciate the special limits of our contemporary development theories and to look to social ‘science as an aid but not as a panacea.’”6? 58, Unpublished (1967). 59, Id. at 233. 60, Supra note 41 at 23.1975] DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 535 TIL. Certain heresies The opportunity may be availed here to remove two heresies. It has often been expressed that the legal community has not been concerned with development (reference is usually made to economic development) or shown sufficient awareness about it. This criticism seems to be justified if the idea is to say that lawyers have not been associated with the development plans and schemes by the planners and policy makers, But it docs not seem correct to say that lawyers have not concerned themselves with the problems of development. ‘The major problems, created by development, requiring solution by lawyers have been the growth of administrative powers necessitating their control to avoid arbitrariness, and equitable use and distribution of resources. That the legal community has been deeply involved with these problems is amply demonstrated by the inclusion of such courses in the legal pedagogy as administrative law, labour law, governmental regulation of business, company law and taxation, Even legal research is not lagging behind in the area of development. A perusal of a few of the studies produced by the Indian Law Institute should dispel any doubt in this regard. These are : (1) Contractual Remedies in Asian Countries; (2) Law of Inter- national Trade Transactions ; (3) Law Relating to Irrigation ; (4) Some Problems of Monopoly and Company Law; (5) Govern- ment Regulation of Private Enterprise ; (6) Interstate Water Disputes in India ; (7) Law Relating to Flood Control in India ; (8) Law and Urbanisation in India ; (9) Labour Law and Labour Relations ; (10) Property Relations in Independent India : Constitutional and Legal Implications ; (11) Cases and Materials on Administrative Law in India; (12) Administrative Process under the Essential Commodities Act ; (13) Interstate Trade Barriers and Sales Tax Laws in India; and (14) Administrative Procedure Followed in Conciliation Proceedings under the Industrial Disputes Act. ‘The second heresy pertains to the research work done by the Indian Law Institute. It has been assumed in certain quarters that the Institute has confined itself only to doctrinal research. Though, it is true to say that it has given priority to doctrinal research, yet it has not ignored non- doctrinal research altogether. A number of instances of the latter type of research can be cited: (1) Disciplinary Proceedings Against Government Servants—A Case Study : This study is based on field work. “The Institute’s staff studied in detail sixty files (twenty each from the years 1957, 1958 and 1959 which are consecutive files of closed cases for these years) in connection with Part I and 150 files of closed cases of the quinquennial period from 1955 in connection with Part If of the study”. This data was further supple- mented by more general reports on disposals provided by the department and by the information gathered from responsible officers of the department.536 JOURNAL OF THE INDIAN LAW INSTITUTE {Vol. 17:4 The research team also attended formal disciplinary proceedings to gain insight into the operation of the proceedings. (2) Administrative Procedure Followed in Conciliation Proceedings under the Industrial Disputes Act : This monograph is based on a study of 373 cases of failure of conciliation and 421 cases of settlements including award and mutual settlements to arrive at the conclusions made in the book. (3) Interstate Water Disputes in India: This study is again based on the actual case files of interstate water disputes in India and interviews with the officials concerned at the level of the central government. With the help of these files and interviews the Institute identified the issues requiring solution through law and also the Teal reasons for failure to settle these disputes through methods other than adjudication. (4) Interstate Trade Barriers and Sules Tax Laws in India: This study is based on economic data collected through a questionnaire from the agencies concerned regarding the impact of the present sales tax laws on interestate commerce. With the help of economic data it found economic justification for a few of the provisions in the Central Sales Tax Act. The study also recommended the creation of an Interstate Taxation Co-ordination council. This suggestion was implemented to some extent by the govern- ment when in 1968 the central government created four regional councils to discharge practically the same functions as were suggested »in case of the Interstate Taxation Co-ordination Council. (5) Presidential Assent to State Bills—A Case Study: This study (published as articles in the Journal of the Indian Law Institute) is based on a study of about 300 state Bills sent by the states to the centre for presidential assent during the year 1956 to 1965. (6) Assessing the Degree and Depth of Acceptance of the System of Law in India in terms of (i) Awareness, (ii) Value Compatibility, and (iii) Pattern of Adaptation. Reference has already been made to this work in the earlier pages.