Professional Documents
Culture Documents
LEGAL RESEARCH·
s.N. Jain"
• This paper is a supplement to the author's earlier paper. "Legal Research and
Methodology", 14 JIL/487 (1972).
Reprinted from 17 Journal of the Indian Law Institute 516-536 ( 1975) .
•• L.L.M., S.J.D. (Northwestern), Director, Indian Law Institute, New Deihl.
DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 69
He himself says:
I. Boonin, "Concerning the Relation of Logic to Law", 17 J. Legal Ed, 155 at 158-
159 (1964-65). Emphasis as in the original.
2. Quoted in The Nature of the Judicial Process 23 (1921).
70 LEGAL RESEARCH AND METHODOLOGY
The creation of.a body of law where none had ~ithero existed
"is a social achievement It is an ..wiliievement not to be "Mer-
S~ti,ID,~ .Ili~ - asJl.r.cminderthaLat parti~Jar p~r! . s
in the history of law the creative working out of legal doctrine
1$ both necessary andcri-iTcal ilOd]ustitiablya paramount concern
.-~ ------
of legal research. 4 .. ,.-......- . ' - - -
3. Jd. at 26-28.
4. N.D. Grundstein, "Administrative Law and the Behavioral and Management
Sciences", 17 J. Legal Ed. 121 at 122 (1964-65).
5. Oliver Wendell Holmes, The Common Law I (1881).
DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH
zyx
with a picture of satisfying as much of the whole body of human
wants as we may with the least sacrifice. I am content to think
of law as a social institution to satisfy social wants-the claims
and deniaiids and expectations involved in the existence of
civilized society-by giving effect to as much as we may with
-c
zyxwv
social control; a more embracing and more effective securing of
zyxwv
social interests; a continually more complete and effective
elimination of waste and precluding of friction in human enjoyment
ofthe goods of existence-in short, a continually more efficacious
social engineering.6
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
continually conflict with or overlap those of his neighbours. So
there is, as one might say, a great task of social engineering.
zyxwvut
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.’
zyxwvut
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.
Jhe present emphasis of law on achieving the social welfare of the
people along with the fact of great economic and technological advance-
ments have placed great burdens on law ~.e£2!1S_Qfla Because
of the necessity to enact Iaw~- Q!l, complex and ~ e r s . s ~ t s it has
become inevliablefor 'the 'ieslatur_!~vgp J~. jhe s.tatl,lt.es,-'arid-
noitercs a'~tg- fl e~ ,g "'ii !llesoUJ:t$tp evolve doctrines, principles.
standards and norms themselves in the process of _a"p 'licat ~r: of the law
from case "to case. Further, the complexity of laws has given scope for
ambiguities Tn.em hcsroegau n lyroiu~ ·eil Then a word used ina
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 maYloSe
Its plainness at the time of actual controversy because oTihe human
limitation to foresee all the difficulties and' nuances of the problem. A few
examplesmay 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:
A few examples may be given here. Use of such phrases as "just and
equitable't.? "public order", 10 "inexpedient'"?" "reasonable opportunity of
being heard" 1I "reasons to believe",12 "undue and unreasonable pre-
ference't.!' "acting under colour of office", 14 "reasonable sum".'! "rash
or negligent act",16 "reasonable apprehension";'? "reasonable cause'"!
"oppression and mismanagement't.!? 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 a marriage as "nullity", "industry", "industrial
dispute", "business expenses", "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 statutory 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 must 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 ofconstitutional law are "reasonable
classification" under article 14, "direct and indirect restriction" under
part XIII of the Constitution, and "the basic feature 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 modem 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 "ultra vires" (to test the validity
of administrative 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 administrative 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".20
A brief survey of the statutory provisions leads to one inescapable
conclusion. In modem 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 a few examples
here, in Bengal Immunity Co. v. State of Bihar. 21 the court, while
overruling State of Bombay v. United Motors,22 stated:
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 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 unduly 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
contributions would be from the rich and affluent who constitute
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.I?
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
propounded, especially in the light of the factual evidence available
as to its probable results. 29b
Any number of cases can be cited when the court without expressly
overrulmg Its earlier decIsions a~ rte
..~,_ .. , - ~ . ~ -
illthoflty' or modified the principles laid down (sometimes in t ie garo of
---- '- '-~-' ' , , "".-----.--
from tnemor weaKened their
.. _.
From where does a doctrinal researcher get his social policy. social
facts and social values? The answer is, his own experience, observation.
reflection and study of what others have done before him in a similar or
same kind of situation. However, it will certainty add value to his
research if he gets an opportunity to test his ideas by sociological data.
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
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
DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCII 7')
41. International Legal Center, Law and Development, 10, (New York. 1(74).
42. Vilhelm Aubert (Ed.), Sociololy of Law 9 (1969).
43. K.C. Davis, "Behavioral Science and Administrative Law", 17.J. l.egu! F.cI 137
at 151-52 (1964-65).
44. Upendra Bax i, Sacio-Legal Research ill India : A Programschrijt 7 (ICSSR.
1975).
80 LEGAL RESEARCH AND METHODOLOGY
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 ofLaw and
Stale 7 (196\).
82 LEGAL RESEARCH AND METHODOLOGY
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 JIL/547 at 563-64
( 1968).
DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 83
He further says :
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 between initiation of bills, their passage through the House,
the intervening 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. 52
54. See. for instance. Rajya Sabha, Who's Who (1974). Also see. Socio-Economic
Background of Legislators in India (prepared by Research and Information Ser vice.
Lok Sabha Secretriat), 21 Jour. of Pari In! 23 (1975).
55. Supra note 44 at 31.
86 LEGAL RESEARCH AND METHODOLOGY
records or data already gathered for purposes other than one's own
research."56 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 method it
has been stated :
One of the limitations of the interview is the involvement of the
individual in the data he is reporting and the consequent likelihood
of bias. Even if we assume the individual to be in possession of
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 personal interviews....Another limitation on the scope of the
interview is the inability of the respondent to provide certain
types of information ....Memory bias is another factor which
renders the respondent unable to provide accurate information. 57
A few other limitations are the problems of communication process,
motivation of the respondent and his general ability, expertise of the
interviewer, the clarity of research goals, etc. 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 a certain 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".58 Thus, one of the conclusions of the study is:
56. Festinger and Katz (Ed.), Research Methods in the Behavioral Sciences 241
(1953).
57. Cannel and Kahn, "The Collection of Data by Interviewing", Id. at 330-31.
58. Unpublished (1967).
DOCTRINAL AND NON·DOCTRINAL LEGAL RESEARCH 87
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 is to 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 oflaw (it can and ought to be used as a valuable supplement
or .~djunct 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 Center monograph Law and Development,
"[I]t 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. "60
59. u. at 233.
60. Supra note 41 at 23.
88 LEGAL RESEARCH AND METHODOLOGY
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
nondoctrinal 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 II of the
study." This data was further supplemented by more general reports on
disposals provided by the department and by the information gathered
from responsible officers of the department. The research team also
attended formal disciplinary proceedings to gain insight into the operation
ofthe proceedings. (2) Administrative Procedure Fol/owed 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
DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 89
the Institute identified the issues requiring solution through law and also
the real reasons for failure to settle these disputes through methods other
than adjudication. (4) Interstate Trade Barriers and Sales 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 interstate 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 government 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 Bil/s - A Case
Study: This study (published as articles in the Journal ofthe Indian Law
Institutes is based on a study of about 300 state Bills sent by the states
to the centre for presidential assent during the years 1956 to 1965. (6)
Assessing the Degree of Acceptance of the System of Law in India in
terms of (i) Awareness. (if) Value Compatibility. and (iii) Pattern of
Adaptation. Reference has already been made to this work in the earlier
pages.