TOPIC 8:

LEGAL RESEARCH
METHODS
DR. ANI MUNIRAH MOHAMAD
SOL, UUM
DEFINE LEGAL RESEARCH
• “ … the criteria for Legal Research are: The ability to analyse a
problem involving a question of law and through research to
provide a solution to it. This involves the ability:
i) To identify and find relevant legal sources and materials;
ii) To extract the essential points from those legal sources and
materials;
iii) To apply the law to the facts of the problem so as to produce
satisfactory answers to the question posed; and
iv) To communicate the reasons for those answers, making use of
legal sources and materials.”
-Joint Statement of the Bar and the Law Society (September 2001)

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 “Legal research is a fresh, diligent, systematic, inquiry or

investigation of the factual data and/or theoretical concepts of

the rules and principles of a particular legal issue in an attempt to

discover, revise or improve the relevant concepts, theories,

principles and application.”

(Mahdi Zahraa, 1998)
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 1.Identify the
legal facts @ • Whether …
issues

2.Search for the

• The authority for
law (statutes + this is …
cases)

3.Apply the law

• In this present
to the facts of case …
the case

THEREFORE….. 4.Conclude @
judgment
• Therefore...
AREAS OF LEGAL RESEARCH

(2) Socio-legal (3) Law through

(1) Pure legal research
(relate to pure law)
research economics analysis (4) Comparative
(use economic theory research (more than
(relate to law + one aspect)
to know whether the
society) law is efficient)

Studies mainly the Studies mainly the Studies mainly the Studies mainly two or
statutes + cases, e.g. statutes + cases + subject matter + more aspects, e.g.
• Study on types of position in society, economic aspect of it, • Compares the types
computer crimes e.g. e.g. of computer crimes
• Study on types of • Govt spending to in UK and Malaysia
computer crimes address computer • Compares the types
+ experience of crimes, if it justifies of computer crimes
Facebook users the spending in in commercial
falling victims of prison @ fine context and
such crimes punishments university
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 Types/classifications
of legal research

Conceptual
Method of data
approach to subject
matter collection

Doctrinal & non Mono disciplinary & Library & non Empirical method
doctrinal transdisciplinary library

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DOCTRINAL VS NON-DOCTRINAL
Ø Takes one or more legal ØLegal scholar takes either some
prepositions (rule, principles,
doctrine, maxim, concepts, aspects of the legal decision
terms) as a starting point process or the people and
and focus on the study institutions supposedly regulated
Ø Research takes place in the by law as the focus of study.
law library – reading and
analyzing al materials ØUsually involves field work.
Ø Write up a report which
may offer a new formulation
in the preposition or a new
model statute been
proposed

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MONO DISCIPLINARY VS TRANSDISCIPLINARY
Ø Discipline involved is one only
i.e ‘law’ Legal research should explore the
Ø Addressed to limited audience interface between law and other
Ø Researcher explains the disciplines i.e law and history, law
relevant juridical concepts, and sociology, law and political
analyses statutory provisions, science etc.
formulates principles
deductible from judicial
decisions and arranges the
whole material in some logical
order

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LIBRARY-BASED
Ø One’s concern may primarily
be with case law and statute
Ø One’s approach may be
mono disciplinary
Ø One’s studies may relate to
the literature on law of
foreign countries that is
comparative law
VS NON-LIBRARY
Ø One can utilize the records of or
data from government
agencies/departments/other
social organizations
Ø One can ask people questions
either through questionnaires or
personal interviews.
Ø One can observe the behaviour
of persons, groups, organizations
and their procedures of work,
products or outcomes.
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EMPIRICAL RESEARCH

• Difficult for lawyers to be convinced that predictions about law can

be made through social science research techniques.
• Most of judges, lawyers and academicians faithfully depend upon
traditional legal materials i.e cases and statutes.
• Empirical research can increase our knowledge of human nature
and its working.

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 CONTINUE…
• Empirical research for law can help to explain:
ØWhat type of law can be enacted
ØThe causative factors for the delay in administering justice
ØProblems that arise because of the variation in the interpretation
given by lawyers
ØThe underlying factors which affect the judgment by ascertaining
the workload of judges, lawyers and other personnel in legal
machinery.

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THE ACQUIRED SKILLS FOR AN EFFECTIVE
LEGAL RESEARCHER

• Dr. Peter Clinch: “ the skill of legal research can mean different
things to different people… recently it has been used to describe
the skills student need to acquire as part of their degree and
professional studies and eventually employ when in legal practice.’

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 The essential elements
of research skills

WHAT?

Presenting the results

Identifying & analyzing a Finding appropriate info of analysis & research in
problem to solve the prob an appropriate &
effective manner
Search & retrieval
Problem analysis
of information communication

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• Fact collection
• Legal knowledge
• Problem identification
• Legal analysis
• Fact analysis
• Further fact collection
• Identification of avenues
of research
• Generation of key
search words
(1) RESEARCH
PLANNING
(2) RESEARCH
IMPLEMENTATION
• Identification of problem(s) for
resolution
• Identification of relevant source
materials
• Location of source materials
• Effective use of source materials
• Analysis of research findings
• Application of findings to
problem(s)
• Identification of further problems
• Identification of the recipient’s
need or requirements
• Selection of appropriate format,
for example, letter, memorandum,
report, brief
• Use of clear and succinct language
• Use of appropriate language style,
i.e, informatory, advisory,
recommendatory, demanding
(3) RESEARCH
PRESENTATION
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 ETHICS IN DOING RESEARCH
Ethics in this context stands
for ‘…the moral principles by
which a person is guided.’

• A researcher may encounter an ethical dilemma in carrying out research on

certain topics.
• It would also imply that:
• He must not attempt to gain any conclusions by immoral means
• His conclusion shall not encourage immoral doings

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• Avoidance of bias
• Means ‘an inclination, leaning, tendency, a preponderating,
disposition towards, predilection, prejudice’
• Research must be as bias-free as possible

• Bias may arise from various sources:

ØA researcher’s family background
ØHis educational background
ØThe society in which he grew up
ØHis peer group

Avoid bias in experimental design, data analysis, data interpretation,

peer review, personnel decisions, expert testimony etc.

Disclose personal or financial interests that may affect research.

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SOME GENERAL CONDITIONS OF
MAINTAINING ETHICS IN RESEARCH
Ø Honesty is the best policy in carrying out research

Ø The researcher has two important responsibilities:

(i) That he has not deliberately misinformed the reader, and
(ii) That he has not collected information for his research by illicit or
dishonest means
- ‘informed consent’
- not jeopardize the self respect and privacy of his subjects
- avoid plagiarism, fabrication of data, undue exploitation of research assistants &
exposing research participants to physical or mental stress

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ADDITIONAL STRATEGIES FOR
MAINTAINING ETHICS
Respect for
Integrity Carefulness Openness intellectual
property

Responsible Non
Confidentiality publication discrimination Legality

Human subject
Animal care protection
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 Kinds of legal
research
methods

Conventional/
Socio-legal
Traditional research
research

Analytical &
historical philosophical comparative
critical method

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 CONVENTIONAL OR TRADITIONAL
RESEARCH METHODS
• Also called old fashioned or legalistic
• Most widely used methods in legal research
• Mainly concerned with stating, interpreting or clarifying the
existing law in a given sphere of municipal or supranational
jurisdiction.

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 Conventional @
Traditional legal
method
Handles legal
research by:

(1) Examining
cases, statutes, law (4) Btwn rules + princ
report etc
& btwn other relevant rules,
princ, doctrine, theories in
(2) Breaking down legal discipline
rules + identifying
Identifying rules their constituent (3) Elements in the
+ principles elements provision
Identifying relationship
Analyzing + btwn rules + princ
explaining rules + Identifying relationship
principles btwn elements

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HISTORICAL METHOD

• It is the systematic and objective location, evaluation of

evidence in order to establish facts and draw conclusions
about past events
• To know how and why the rules have come to be accepted
and to take their modern form
• Seeks to find the origin and to trace the development of a
given principle of law or a branch of laws.
• Lead to new understanding of the past and its relevance to
the future.

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 CONTINUE…

• To benefit from the past experience – it displays the ability of

history to employ the past to predict the future or to use the
present to explain the past
• Helps to identify various factors affecting the evolution and
development of particular rule, principle or theory
• Enable the researcher to formulate a new doctrine or theory or to
find evidence that support/destroy some old legal presumptions.

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PHILOSOPHICAL METHOD

• Concerned with legal philosophy, general legal theory and

jurisprudential aspects of legal studies
• Concerned with issues such as the nature of law, the historical
origins and development… of legal institutions and ideas generally,
relationship with social phenomenon, the relationship of law and
justice, significance and use of such fundamental legal conceptions

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COMPARATIVE METHOD
• It is the systematic quest for further knowledge regarding a
particular legal issue or problem in two or more different legal
systems.
• Functions:
(i) To ascertain principles common to all civilised system of law
(ii) To discover the causes which underlie the development and
extinction of legal institutions
(iii)To promote the unification of legal rules followed in civilised
communities

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 CONTINUE…
(iv) Enrich legal system with new ideas, principles, legal perspective,
experience and other possible solutions to enable them to
overcome some of their difficulties
(v) Helps to highlight unseen advantages
and disadvantages in some rules and principles of the newly
established legal systems, especially if the comparison is between an
old and well established legal system and a newly developed legal
system
(vi)To identify similarities and dissimilarities of various legal system
Three traditions of law: civil law, common law and Islamic law.

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EXAMPLE COMPARATIVE STRATEGIES
STRATEGY FOR… COMPARE THIS… WITH THIS…

INTRA STSTEM UUM Lecturer UUM Student

INTER SYSTEM UUM Student UKM Student

GEOGRAPHICAL Malaysia United Kingdom

INTER-DISCIPLINE Law Economic

TIME PERIOD Pre-Independence Post-independence

LOCAL AND Malaysia Law United Nations Law

INTERNATIONAL
ANALYTICAL & CRITICAL METHOD
• The researcher will break down the problem situation and ascertain what
elements compose it and what rules are applicable to each part of the subject
and its problems
• Also known as interpretive methods
• The researcher will intrepret the existing formal legal fact
• Usually done by combining the researcher’s logic with corroborative evidence
of authoritative opinion on the point
• Statutes, texts and judicial decisions are the subject matter of the research.
• Usually follow the rules on interpretation of statutes; literal rule, mischief
rule, golden rule & purposive approach.
• Involves analytical comments on decision of judges in cases decided by courts;
doctrine of judicial precedent 28
SOCIO LEGAL RESEARCH
• A combination of social science methods + legal method
• A systematic method of exploring, investigating, analyzing and
conceptualizing… certain facts of social life in order to contribute to
legal knowledge
• It is the search for the implication and effect of the legal rules and
principles on the individual and society
• It is also the search for the implication and effect of social order and
beliefs on the law.
• Most likely to be used in subjects such as criminology, social control,
individual’s attitude towards the law, family law and etc.

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 CONTINUE…

• Very likely to use empirical research using scientific observation, in

the street, offices, courts, visiting victims, prisons, hospitals etc.
• Involves collection of factual data, designing questionnaires,
interviewing people, conduct a survey, collecting and analysing
statistics.

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 Topic

Introduction

Problem statement

research proposal
Significance
Components of
Objectives

Methodology

Limitation & delimitation

Literature Review

Schedule of work

Bibliography/references
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QUESTIONS?
a n i mu n i ra h @u u m . e d u . my