LEGAL RESEARCH AND METHODOLOGY

1) Introduction to the course

2) Aims and objectives of the course

a) To provide students with critical and historically grounded introduction to

contemporary legal research.

b) to provide students with an introduction to research skills and research methodology

such that they understand the range of available sources and methodologies and can
use and apply them to resolve legal problem.

c) To introduce students to diverse and problematic concepts and issues in current

legal research.

d) To provide students with the research tools and skills necessary to undertake and
engage successfully in independent legal research at any level.

e) To enable students present legal issues, disputes and attendant intellectual

arguments in a structured and comprehensive manner sufficient to prepare them to
undertake the final long essay project.

f) To enable students acquire confidence in exploring their research ideas to formulate

research proposals.

g) To provide students with the skills to research and successfully complete research
long essays/term papers in accordance with the guidelines acceptable in the legal
field.

h) To introduce students to computer techniques and packages for preparing and

presenting assignments, dissertations and thesis in the legal profession.

3) Intended Learning Outcomes

It is intended that at the end of this course students:

a) Should have acquired critical skills in legal research and understand the traditions
and contexts of current legal research methodology.

b) Should be able to present structured arguments sufficient to undertake

successfully a research essay/dissertation or project.

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c) Should have gained an understanding of library resources, library databases and
electronic sources (i.e. how to use advanced search and find tools to locate
particular information).

d) Should have developed the ability to think broadly of a range of possible research
questions, investigate and develop a research topic, apply theoretical perspectives,
research methodology and prepare and present research proposals.

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 COURSE OUTLINE

MODULE 1

1) Definition and meaning of ‘Research’

2) Meaning of ‘Research Methodology’

3) Definition, Meaning and Nature of ‘legal research’

MODULE 2

1) Types of Legal Research Methodology

a) Doctrinal Methodology

b) Non-doctrinal/Socio-legal Methodology

2) Types of Doctrinal Methodology

a) Analytical doctrinal methodology

b) Comparative doctrinal methodology

3) Nature/Purposes of Doctrinal methodology

a) Evolutive purposes

b) Explicative purposes

c) Identificatory purposes

d) Interpretative purposes

e) Collative purposes

4) Problems Associated with Doctrinal Methodology

MODULE 3

1) Types of Non-Doctrinal/Socio-legal Methodology

a) Law are development research

b) Interdisciplinary legal research

c) Scientific legal research

d) Legal research involving non-legal topics

2) Nature/Purposes of Non-Doctrinal methodology

3) Problems Associated with Doctrinal Methodology

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MODULE 4

1) Ethical Issues in Legal Research

A) Definition of Ethics

B) Philosophical Issues surrounding Ethics

2) Ethical Issues in Socio-Legal Research

A) Voluntary Participation

B) Informed consent

C) Risk of Harm

D) Confidentiality/Anonymity

3) Ethical Issues in Both Doctrinal and Non-doctrinal Research

A) Plagiarism

(1)Definition of Plagiarism

(2)Forms/Types of Plagiarism

(3) Penalty for Plagiarism

3.1. Punishment for plagiarism as a University Offence

3.2. Punishment for Plagiarism as a Criminal Offence

B) Fabrication and Falsification of Data

C) Non-publication of data

D) Poor data storage and retention

E) Misleading authorship

MODULE 5

1) Types and Processes of Legal Research Writing

A) Academic research output/writing

(1) Term paper

(2) Peer-review academic paper

(3) Funded research/monograph

(4) Research long essay/dissertation/thesis

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 B) Professional research output/writing

(1) Brief of argument

(2) Court processes/document

(3) Agreement

2) Process of conducting legal research

A) Process of planning the research

(1) Preliminary reading

(2) Exploratory reading

2.1 Sources cards

2.2 Note cards

(3) Critical reading

B) Process of writing the research in line with acceptable format/structure

(1) Format/structure of term paper/peer review paper

(2) Format/structure of research long essay/dissertation

MODULE 6

1) Format/structure of term paper/peer review paper

A) Preliminaries

(1) Title

(2) Author

(3) Abstract

(4) keywords

B) Introduction

(1) Background of research

(2) Research problem

(3) Thesis statement

(4) Research roadmap

C) Main body

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 (1) Section/parts 1

(2) Section/parts 2

D) Conclusion

(1) Summary of findings

(2) recommendations

E) References

2) Format/structure of research long essay/dissertation

A) Format in doctrinal research

(1) Preliminaries

(2) Introduction (chapter 1)

2.1 Background of the study

2.2 Statement of the problem

2.3 Research questions

2.4 Objectives of the study

2.5 Research methodology

2.6 Significance of the study

2.7 Scope of the study

2.8 Limitation of the study

2.9 Literature review

(3) Main body (chapters 2 – 4)

(4) Conclusion

(5) References and bibliography

B) Format in Socio-legal/Empirical research

(1) Preliminaries

(2) Introduction (chapter 1)

2.1 Background of the study

2.2 Statement of the problem

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 2.3 Hypothesis

2.4 Objectives of the study

2.5 Significance of the study

2.6 Scope of the study

2.7 Limitation of the study

(3) Literature review (chapter 2)

(4) Research methodology (chapter 3)

(5) Data collection and Analysis (chapter 4)

(6) Conclusion (chapter 5)

(7) References and bibliography

MODULE 7

1) Legal Research Documentation and Referencing

A) Definition of referencing / documentation

B) Types of referencing / documentation

a) Reference or bibliographical documentation

b) Textual documentation

C) Forms of referencing / documentation

a) In-text or intra-text referencing

(1) APA referencing style

(2) Chicago referencing style

(3) Harvard referencing style

b) Extra-text referencing

(1) Endnote referencing

(2) Footnote referencing (more appropriate for legal research)

D) Importance / benefits of referencing (why)

E) What to reference

F) When to reference

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G) Legal referencing guidelines / styles

a) Blue book uniform guide for legal referencing

b) Australian Guide to legal citation

c) Canadian referencing guide

d) OSCOLA

e) NALT uniform citation guide

H) Legal referencing signals

a) Introductory signals

b) Cross referencing signals

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 MODULE 1

MODULE 1, UNIT 1

DEFINITION AND MEANING OF RESEARCH

The term ‘research’ is normally defined as a systematic search for facts or scientific
investigation of the principles and facts of any subject, based on original and first-hand study
of authorities or experiment. It involves the ‘searching into a matter closely and carefully’. It
is also an inquiry directed to the discovery of truth. Thus, the Encyclopedia Britannica
defines research as:-

The act of searching into a matter closely and carefully, inquiry directed to the
discovery of truth and in particular the trained scientific investigation of the
principles and facts of any subjects, based on original and first-hand study of
authorities or experiment. Investigations of every kind which have been based
on original sources of knowledge may be styled research and it may be said
that without research, no authoritative works have been written, scientific
discoveries or inventions made, no theories of any value propounded…….
Another writer Rajkumari Agrawala opined that research is a continuum. He defined research
as “the gathering of evidence or information for ascertaining an assumption or verifying
some hypotheses. It is an inquiry for the verification of a fresh theory or for supplementing
prevailing theories by new knowledge”.

Research is also defined as the planned and systematic investigation and collection of
relevant facts and analysis and interpretation of those facts through objective and verifiable
methods for the purpose of arriving at solutions to problems or deducing broad principles or
laws.

From the above definitions we can safely say that research involves four aspects:-

(1) A dispassionate investigation of a subject (i.e. empirical, doctrinal e.t.c could be

original sources of knowledge or secondary)

(2) to ascertain an assumption or verify a hypothesis

(3) using objective and verifiable methods

(4) aimed at arriving or discovering the truth about the subject

Research generally involves a planned process of conducting investigations in order to

achieve a pre-determined objective. Please note that the objective always is a solution to one
or more specific problems, or an addition to current knowledge in a particular field.

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Therefore the success of any research effort is determined by the relevance of its outcome to
problem-solving or the advancement of knowledge. However, the quality of a research is
dependent on the methodology applied in carrying it out.

It is however noted that no research can claim to be purely and wholly new. Thus,
even original discoveries are in some way an extension of the research already undertake by
previous researchers, and in most cases are proved to generally be an expression of
agreement, or a refutation or just a plain addition to the previous research. That being the
case, every researcher is burdened with the heritage of information already collected in his
area of work (thus the need to first review the works of other researcher in the proposed
research area). Knowledge is not encumbered by any inherent limits in terms of time or
space, and it does not flow backwards. It is not amenable to any individual confiscation or
generational disinheritance. In a nutshell therefore, what is required in any research is not an
unattainable perfection, but a sound, verifiable and publishable investigation of a
phenomenon.

MODULE 1, UNIT 2

MEANING OF RESEARCH METHODOLOGY

Methodology is usually the backbone of any research. It is simply the science of methods of
doing a particular thing. Methodology is therefore the manner of proceeding adopted by a
researcher in the bid to gain systematic, reliable and valid knowledge about a phenomenon.
In the words of Martin Bulner:-

Methodology denotes the systematic and logical study of general principles

concerned in the broadest sense with the question how knowledge is
established, and how others can be convinced that the knowledge is current.
Research methodology is usually the combination of research techniques, research
philosophy and research strategy. One writer defined research techniques as the “specific
manipulative and fact finding operations, which are used to yield data about the social
world”. Adam Podgorecki however defines techniques as the “tool or know-how most
adequate to a given research task”. Depending on the category and type of research,
techniques may be in form of observation, questionnaires or interviews schedule to elicit
people’s social characteristics, beliefs and attitudes, the use of official statistical and
historical documents, the use of statutes, case books and studying court files.

Research philosophy on the other hand, involves the thinking or reasoning pattern
employed by the researcher to arrive at verifiable knowledge, which may be either deductive
or inductive reasoning. Sometimes, the research philosophy employed also depends on the
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nature or type of research embarked on, i.e. empirical (quantitative), qualitative or doctrinal
research.

In the case of research strategy, this refers to the way in which one particular research
study is designed and carried out, what notions about the task of research are embodied in the
approach used, what type of research design is used, and what particular combination of
available research technique is employed. In every methodological design, the research
strategy generally dictates the choice of research technique to employ; however, it is also at
the same time restrained by the available and feasible techniques. Thus, research strategy is a
broader concept that encompasses the technique and also how the elicited data (by whatever
technique) is analysed, i.e. using a broad range of tools and philosophy (whether deductive or
inductive reasoning, e.t.c.)

MODULE 1, UNIT 3

DEFINITION, MEANING AND NATURE OF LEGAL RESEARCH

Generally the term “Research” is derived from the Greek word “CHERCHER” meaning “to
search”. Thus, borrowing from this concept legal research is defined as:-

The process of identifying and retrieving information necessary to support

legal decision-making. In its broadest sense, legal research includes each step
of a course of action that begins with an analysis of the facts of a problem and
concludes with the application and communication of the results of the
investigation.1
Traditionally legal research involves the process of:-

(1) Finding primary sources of law in a given jurisdiction such as statutes, rules,
regulations and other subordinate legislations

(2) Searching through secondary authorities like decided cases, practice books, legal
journals, dictionaries, encyclopedias and articles; and

(3) Searching non-legal sources for investigative or supporting information.

The process of searching and finding legal information is usually conducted in the quest to
find answers or solutions to particular legal problems or issues, which the researcher is
saddled with the responsibility to solve.

The legal profession like any other profession has its own peculiars ways of finding
information relating to any aspect of its endeavours. The ability of find legal information on
any legal topic is an essential quality of a lawyer which he needs in order to facilitate his
1
See J. Myron Jacobson & Roy M. Mersky: Fundaments of legal research, 8 th ed. (foundation press
2002) p.1
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work, whether as a student, practitioners, or academic. Thus, the primary responsibility of
this course is to introduce to the student the procedures recognized in the legal profession for
the retrieval of legal information, so as to avoid blind-searching by students. Without this
knowledge and skill, the student or legal researcher could find himself in a situation where he
will have to wade through huge quantities of materials, which is time-consuming and
certainly not guarantee to finding information. It is in support of the meaning and nature of
legal research that King George III is reputed to have said that “lawyers do not know much
more law than other people, but they know better where to find the law”. Lord Denning also
re-echoed the views of King George III, many years later when he maintained that “a good
lawyer is one who knows where to find the law”.2

Notwithstanding the above explanation of the meaning and nature of legal research,
one can say that the notion of legal research canvassed above does not take into consideration
the contemporary meaning of the term in the legal profession.

The above investigation is purely the traditional notion of legal research, which we
can boldly say is broadened in modern times in two different respects. Firstly, the traditional
understanding of legal research as “competence in retrieving and assessing, analyzing and
using legal text/publication” has now been broadened to include computer related skills and
retrieval of sources through different methods of information technology systems. In a U.K.
report on information technology and Legal Education made by the Lord Chancellors
Advisory committee on Legal Education and Conduct, members of the Committee were of
the view that because of the vast increasing availability of legal resources on the internet and
other electronic technologies, as a key priority students and practitioners should be
introduced to the basic skills that will enable them function efficiently in the modern legal
environment. Indeed, use of the traditional method of legal research has not only become
obsolete, it is fraught with several advantages as follows:

(1) The process of searching is often laborious and time consuming.

(2) Sometimes the materials are not arranged in a systematic form to guarantee easy
access to the required information.

(3) By virtue of the natural process of wear and tear, the printed books have limited
lives span.

(4) The process of retrieval of information from books is quite tasking

(5) Even economically, books are becoming more expensive

2
Justice peter Akhimie Akhihero, conference paper, Pp. 4-5
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As a result of the above, and the fast increasing pace of legal information technology
resources, the process and indeed the nature of legal research has significantly changed in
contemporary times.

The second respect in which the traditional notion of legal research has been
broadened is in the understanding of the entire process of problem-solving in the legal
parlance. However, this is more akin to the legal academic problem-solving than it is to the
practicing branch of the profession. Legal research in this respect is broadened to encompass
the processes of retrieving data and analyzing and presenting the data in order to solve an
identified problem. This means that legal research is no longer considered the straight jacket
black-letter approach of yester-years. In contemporary legal research, the processes of data
retrieval and analysis have largely been revolutionalised. Thus, legal methodology has been
broadened to encompass socio-legal/empirical tools of collecting information for analysis of
legal problems that face modern society, which increase/elevate legal studies to the pedestal
of scientific enquiry, hence the adage “legal science”. Thus, a contemporary course of legal
research (like this one) is designed to introduce, explain and illustrate the modern legal
research processes, methods and methodologies that are ultilised in the legal parlance, which
are necessary to define the research problem; formulate and investigate research questions
and hypothesis; and collect, analyze, and present data in its various forms. The overall
emphasis is on the rich array of tools that are available to facilitate the study and collection of
information on both theoretically and practically important topics.

It is good to note that the process of contemporary legal research must invariably be
directed at solving a problem. There must be a question of law which the researcher intends
to gather information about (through the process of research, whether using the traditional or
modern means of legal research) so as to answer. Such a problem which raises questions of
law may arise either:-

(1) in the course of a lawyer intending to solve a practical legal problem for his client
in legal practice, or

(2) in legal academic pursuit, where the researcher identifies a problem in a particular
field of law which educes questions of law he intends to answer.

Legal research takes a different sequence in each of these scenarios. Whereas in both
cases, the researcher must embark on the first process of legal research which is the retrieval
of relevant information to address the problem/question of law (through either the traditional
or modern means of legal research i.e. use of library to retrieve primary and secondary

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sources and use of information technology resources such internet, CD Rom etc), the process
dramatically changes once such information is retrieved, depending on whether it was
retrieved for the purpose of legal academic research or legal practice purposes.

Where the information/data is retrieved for legal practice purposes, legal research
proceeds into the process of legal writing/drafting (i.e. brief writing) which requires legal
reasoning abilities and analytical skill for the purpose of convincing the court on the
available facts (we shall do more on this aspect of legal research in the second semester). On
the other hand, where information/data is retrieved for legal academic purposes, legal
research proceeds to the adoption of specific methodologies 3 which enables the researcher to
answer the questions raised by the legal problem identified (this is the aspect of legal
research we are concerned with, in this course). In this second aspect of legal research (i.e.
academic pursuit) the subject matter and/or problems/questions of law which legal research is
concerned with, are limitless. Problems/questions of law may arise from every facts of the
legal discipline. However, the major purposes of legal research in this respect are:-

(a) to ascertain the legal consequences of a specific set of facts and

(b) to study the functioning of particular legal institutions in a specific economic,

social and political contexts

These two purposes might be motivated by:-

(1) The need to gain an insight into the existing state of affairs and to arrive at a
diagnosis of the forces and factors which determine the studied section of social
reality.

(2) The testing of certain hypotheses upon which legislation could be based; and

(3) The need to disclose whether enacted legal precepts have attained their intended
effects or on the other hand have introduced some unexpected effects.

Additionally, legal research in contemporary scholarship has moved beyond solely the study
of only legal principles and how they interact with given facts. It now also embraces
interdisciplinary legal study such as the study of legal principles in the context of other
related social sciences like political science, sociology and economics.

3
It is good to note that methodology could be applied at two stages of legal research. That is, methodology that
would be used for the process of retrieval of data (i.e. doctrinal and socio-legal/empirical methodology also
known as the technique at this stage) and then methodology that is used at the later stage of analysis of the data
already retrieved (i.e. doctrinal, qualitative, quantitative, or non-doctrinal).
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 There are different approaches in the inter-related study of political
science/international relations and legal study, including issues that border on liberalism,
realism, critical theory, post-modernism, constructivism, feminism, post-structuralism and
Marxism.

In legal research that explores themes of law and economics there is an attempt to
explain law as it is, or as it ought to be, by reference to economic analysis. The two strands of
law and economics approaches are:-

(1) research that seeks to explain current law on the basis that it reflects economic
thinking, and

(2) Research that seeks to make proposals to improve the law in order to make it
more efficient.

Law and sociology approaches are based on the assumption that law exists in, and is
developed through society. The approach is interested in discovering law in action as
opposed to just in the books. On the other hand, law and history research applies some of the
insights that historians have to offer on the interpretation of events of law and legal
processes. Historical approaches to the law can help to ground arguments in their historico-
political context and cast new light on events that have been forgotten or misunderstood.
Courts and their proceedings are particularly amenable to documentary research.

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 MODULE 2

MODULE 2, UNIT 1

TYPES OF LEGAL RESEARCH METHODOLOGY

In the last topic we generally looked at the meaning and nature of legal research. We defined
the concept of legal research and generally identified the two most important methods of
conducting legal research (viz, traditional method and contemporary method), we also
considered that the nature of legal research goes beyond merely searching for legal
information on a particular issues/problem, it extends into the process of analyzing the
available data/information and arranging it in such a coherent way as to solve the problem
earlier identified and on which the information was gathered/retrieved, and communicating in
a clear and concise manner the results/outcomes of the analysis.

We said that in order to accomplish this second aspect of legal research (that is,
analysis of the retrieved data to solve the problem), emphasis is placed on the type of legal
research involved or purpose for which the legal information was retrieved. That is, whether
the retrieved of information was retrieved. That is, whether the retrieval of information was
for the purpose of solving a practical legal problem in legal practice or solving an academic
legal problem. That where legal research involves the first phenomenon, the process
graduates into emphasis on the concept of legal reasoning and legal writing, (which process
we shall considered in the second semester of this course). However, where legal research
involves the second phenomenon, then the researcher begins to talk about the second aspect
of legal research methodology, which simply translates to determining the methods, which
the researcher intends to use to analyse the retrieved information for the purpose of solving
the academic problem identified.

In an earlier lesson, we had defined research methodology generally. Please make

reference to your earlier notes, but we noted that research methodology is simply the science
of method of doing a particular thing; it is the systematic and logical study of general
principles concerned in the broadest sense with the question of how knowledge is established
and how others can be convinced that the knowledge is correct. In other words, methodology
in research simply has to do with the process of developing and analyzing knowledge about
the phenomenon or question which the researcher sets out to solve. Every fields of study has
its own peculiar methodologies of ensuring the credibility and validity of knowledge and its
acquisition. In legal research, there are basically two broad methodologies which may be
adopted in the process of analysis of retrieved data/information. These are:

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 (a) doctrinal methodology, and

(b) Non-doctrinal (socio-legal) methodology.

In this lesson, we shall only focus on doctrinal methodology of legal research. Non-doctrinal
methodology will be considered in subsequent lessons.

MODULE 2, UNIT 2

WHAT IS DOCTRINAL LEGAL RESEARCH METHODOLOGY?

Traditionally legal research is concerned with the development and elaboration of legal
doctrines and the normative purposes of law. It generally seeks to establish propositions
concerning the nature of law. This is so, because the process of legal research cannot be
devoid of the essential nature of legal studies and law itself. Law is a normative science,
which lays down norms and standards for human behaviour in a specified situation or
situations enforceable through the sanction of the state. Legal research therefore must
naturally be speculative of the legal propositions already set down in statute, cases e.t.c (i.e.
law as it is in the books). It generally involves pondering over the essence and main qualities
of these propositions.4 Most of the times whatever the speculative propositions that are
possible or admissible within the normative standards set down in statutes, cases e.t.c. can
hardly be verified empirically.

Having the above in mind therefore, doctrinal legal methodology also known as
“black-letter method” simply involves the analysis of legal prepositions (i.e. case law,
statutory provisions e.t.c.) by the application of the power of reasoning. It uses interpretive
methods to examine cases, statutes and other sources of law in an attempt to seek out,
discover, construct or reconstruct rules and principles. It then systematises and employs them
to conduct descriptive analysis and normative evaluation of the process of decision-making.5
This kind of research methodology is the must common in legal research and scholarship
because of the heavy emphasis that it often placed on ‘legal rules’ generally. Mansell,
Meteyard and Thomson6 concludes that:-

We think of rules as things which are to be found in books and which tell us
what we may or may not do. Many lay people characterise the job of lawyers
as one of applying rules, which they know, in order to determine legality and
to ensure that actions conform to the rules…”

4
Gosiokwu, p. 14
5
See Legal Research Method and Public Procurement Regulation, p.4.
6
W. Mansell, B. Meteyard and A. Thomson, A Critical Introduction to Law, (London: Cavendish, 2004), p.4 in
ibid.
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Still on the emphasis which legal research places on rules and how this greatly influences the
use of doctrinal methodology in legal studies, Banakar and Travers7 noted that:-

Many theories of law, in particular those rooted in legal positivism, are

influenced by this rule-based approach. These theories often hold that ‘legal
rules are constitutive of law and that the force of rules… derives in general
from their having been enacted by institutions authorised to make rules”
The process of doctrinal methodology in legal research involves the following:-

1. Organization of the study or research around legal propositions;

2. Use of court reports and other conventional legal materials as principal sources of
data readily accessible in a law library;

3. Drawing conclusion from these legal materials.

MODULE 2, UNIT 3

TYPES OF DOCTRINAL METHODOLOGY

There are basically two types of doctrinal methodology in legal research. These are:-

(a) The analytical doctrinal methodology

(b) The comparative doctrinal methodology

a) Analytical Doctrinal Methodology

This type of doctrinal methodology aims primarily at an exploration of what is the existing
law. It involves an analysis of a specific legal problem, such as a specific provision of a
statute or code, or a specific case or line of cases. However, in order to achieve originality
there has to be more than a mere summary of the statutory provisions or the line of cases. It
is also not enough that the way in which legal information is presented is particularly skillful.
Rather, it is necessary that something new is suggested. Examples may include a new
solution to a particular legal problem, a new way to interpret a particular statutory provision
or court decision or a new way to evaluate a particular legal rule.

An analysis of a particular statutory provision for instance would discuss its wordings
and legislative purpose. An analysis of a particular court decision may distinguish between
the facts, ruling and obiter dicta as well as discussing the decision’s relationship to previous
case law. Given the complexity of law, these analyses are not very easy. However, analyzing
legal prepositions like this is also not particularly enough to attain originality. Often a further
step is needed.
7
R. Banakar and B. Travers, “Law, Society and Method”, in R. Banakar and M. Travers (eds.), Theory and
Method in Socio-Legal Research, (Oxford: Hart, 2005), p.7.
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 This further step is usually adopted by many academics to identify how different
elements of the law fit together to form one internal and general system of law. Different
terms are used for this approach. Some call this an “interpretive legal theory” which aims at
identifying connections between features of the law and illuminating the law’s fundamental
structure”. A similar term is “legal synthesis” which attempts to fuse the different elements
of cases and statutes together into coherent and useful legal standards or general rules. The
idea is to determine whether different legal rules which display common characteristics form
an “inner system”. The rationale for this reasoning is that law is not simply an accumulation
of data or rules. Emphasis is on achieving legal coherence, by referring to a set of
prepositions which taken together makes sense in its entirely, and which many justify
arguments by analogy. Law must be coherent with pre-existing cases and statutes, and it must
also aim at the best justification for the solution to the particular legal problem.

On the other hand, it is not all the times that legal scholars achieve coherence in the
analythical study of a legal problem. Thus, if the result demonstrates internal incoherence
because of conflicting legal norms, the researcher would have all the same successfully
employed analythical methodology in the study of the problem

Analytical methodology may even take up a historical perspective or consideration.

The legal problem may involve an examination of old records, history of a particular time or
legislation, as well as the ability to draw conclusions from various sources. It may also be
challenging to discuss whether insights of legal history have persisted and can still be applied
to today’s legal system. Thus, Legal history can be a means of understanding, criticising and
assessing the state of the law, leading to original results.

b). Comparative Doctrinal Methodology

Some legal research seek to use comparative method, comparing norms across different legal
systems or different jurisdictions within the same legal system, or even comparing legal
norms with norms in other disciplines. This may be done simply for its intrinsic interest, or to
understand one’s own legal system better, by contrasting comparative systems (what we may
called descriptive comparative law). Alternatively, it might be for a number of other reasons,
for instance:-

(i) To search for a “unified law” (e.g. to identify a natural law of contract or for unification
of areas of private law).

(ii) To test legal theory (which if robust, would apply in different legal systems).

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 (iii) To seek to understand the forces that causes change in legal systems and societies (here
there may be links to interdisciplinary work, such as law and history or law and
political science).

(iv) To make normative claims (i.e. this law is better at achieving some desirable aim or
policy outcome than that law) which may lead to law reform proposals. (Where such
claims are made, of course, some sort of justification whether theoretical, qualitative
or quantitative for the claim is necessary).

Comparative legal research methodology assumes that there is a certain degree of

“transferability” of legal norms, from one country/legal system/legal culture/time
period/jurisdiction to another, which is why the methodology is usually applied in the first
place. Thus, it is not a very good attempt at the use of comparative methodology if the
researcher simply describes two or more different legal systems without attempting an
intrinsic comparison of their features. Rather, the methodology is about making a comparison
and possibly, also a policy recommendation for one or more of the countries/jurisdictions
involved.

MODULE 2, UNIT 4

NATURE/PURPOSES OF DOCTRINAL METHODOLOGY IN LEGAL RESEARCH

Doctrinal methodology is employed in legal research to achieve different purposes. These

purposes are summarized as follows:-

(a) Evolutive Purpose

Doctrinal methodology is sometimes employed to find out how a legal fact (i.e. rules,
concept, institution or legal system) came to be what it is. This can be done by tracing the
evolution of a legal fact, by locating various supportive and causal phenomenon and events
responsible in shaping the growth of the legal fact under study. This history of law must
admit of the mutual dependence of law and other societal events and phenomenon. This
method of enquiry naturally takes the legal researcher into non-legal fields for gathering the
required information.

(b) Explicative purposes:

Here, doctrinal methodology is used to ascertain the nature, scope and source of law in order
to explain what law is, and also spell out the several propositions, parts and facts of law and
the legal system. Using doctrinal method to achieve this purpose is aimed at expounding the
logical coherence of concepts, elements, facts and interest of legal phenomena, of their

20
relationships with the concepts, elements, facts and interests outside the legal system for
determining and defining the terms and presuppositions used in law.

(c) Identificatory purposes

Here, the purpose for the use of doctrinal method is to identify the beneficiaries of a legal
rule. It seeks to answer the question - who are the parties expected, or intended to be
benefited by a given legal rule, concept, institution or system of law? Identification of the
parties benefited by a particular legal fact helps to ascertain the object of that legal fact and
clarifies the justification for its existence. It also helps to ascertain whether the parties
intended to be benefited are actually being benefited. It serves to assess the utility of a legal
fact.

(d) Interpretative purposes

Doctrinal methodology is also used for interpretative purpose. It is used to interpret an

existing formal legal fact; interpretative is usually done by combining the researcher’s logic
with corroborative evidence and authoritative opinion on the rule being interpreted. Statutes,
judicial decisions and texts are usually the subject matter of interpretation. It helps to acquire
clarity, consistency and uniformity in the meaning of the legal rule and proposition.

(e) Collative purposes

Doctrinal methodology may also be used for collative purposes, which involves the collation
of legal facts pertaining to a given situation. The rationale is to bring together every legal fact
on a given legal proposition to achieve coherence and comprehension of the legal fact. It may
also involve preparation of digest of statutory provisions, judicial decisions and customary
law (i.e. Sesegbon Laws of Nigeria, Halsbury Laws of England).

MODULE 2, UNIT 5

PROBLEMS ASSOCIATED WITH DOCTRINAL METHODOLOGY

There are various problems identified with the use of doctrinal methodology in legal
research, some of these are:-

(a) It does not adequately address the developmental problems of a nation because
the idea of law as a body of rules discoverable only in the books point to the fact
that law is separated from everyday life or social realities. The rules or laws exist
separately from the social situation they are called upon to resolve.

21
(b) Most doctrinal research suffers as a result of the failure of the researcher to
clearly distinguish both in the research design and for the benefit of the reader,
whether and when he purports to describe past legal behaviour to predict future
legal behaviour or to prescribe future legal behaviour.

(c) It fails to take a holistic view of law outside the books, which is the essence of
law.

22
 MODULE 3

MODULE 3, UNIT 1

NON-DOCTRINAL LEGAL RESEARCH METHODOLOGY

As we have seen above, the doctrinal methodology of legal research has been strenuously
criticized as inadequate to appropriately direct research about law and legal issue in such a
manner as to respond to the socio-economic and political problems of the society in
contemporary times. Indeed to that extent, doctrinal methodology has rendered legal research
irrelevant to policy-makers not just in Nigeria but around the entire world. Therefore, for
legal research to be relevant or make contribution to development, it is generally accepted
that it must arise and go beyond purely doctrinal study to examine and explore issues like the
social origins and functions of law, the relationship between legal rules/institutions and
specific development efforts, and the actual and potential impact of law on developmental
goals. The legal researcher must develop the capacity to define and analysis particular
development problems in ways that would be of assistance to the legislator, the judge and the
administrator. He is challenged to move outside the confines of legal doctrines and confront a
wide range of new questions such as new perceptions above law, and new methods for
formulating questions for investigation and acquisition and evaluation of data. 8 This need for
paradigm shift in legal research has necessities the now almost deeply rooted drive towards
non-doctrinal methodology that promotes sociological, empirical and interdisciplinary legal
studies.

In a bid to facilitate the non-doctrinal study of law, the International Legal Centre in
1972 constituted an international group of scholars to suggest the way forward. After
surveying the trends and results of research on law mostly in developing countries the group
called for the utilization of more social science perspectives and methods in law-oriented
research. In its report, it stated that:-

“…..many kinds of research on diverse subjects, using different approaches

are necessary if legal scholarship is to enhance understanding of problems of
development and provide more help to the processes of policy-making and
more guidance to persons engaged in law roles. The tasks range from
insightful analysis of the content of legal doctrine to studies of the actual
impact of particular laws on society; from normative prescriptions to
scientific descriptions of the social context of laws and legal institutions; from
research designed to aid policy judgment to studies directed at general
theories about law and social change.”

8
Ayua, 4-9
23
 Non-doctrinal legal research methodology is more appropriately known as socio-legal
research methodology. Unlike doctrinal research, it involves methodologies that seek to
explore the actual working of law in the society, which makes it inextricably associated with
other behavioral sciences. Here, emphasis is not really on legal doctrines and concepts but on
people, social values and social institutions. Therefore, the data necessarily required to
answer questions related to this kind of legal research is not ordinarily available in the
conventional legal sources (i.e. primary and secondary sources) though these sources are
often the conceptual foundations upon which more practically oriented data is elicited and
analyzed. The necessary data here is often, though not always elicited through empirical
means, which is why socio-legal research is also known as empirical legal research
methodology.

That is, the method of elicitation and analysis of data is by the normal empirical
mean/techniques adopted in other social science disciplines, such as the use of experiment,
questionnaires, interviews and observations. Most of these techniques of empirical legal
research methodology involve field work and usually, certain methods of analysing such data
retrieved through empirical tools must be adopted, i.e. the use of qualitative and quantitative
methods. (See Gasiokwu and use this for assessment)

MODULE 3, UNIT 2

TYPES OF SOCIO-LEGAL RESEARCH

There are generally four aspects of non-doctrinal legal research which are:-

a) Law are development research

b) Interdisciplinary legal research

c) Scientific legal research

d) Legal research involving non-legal topics

(a) Law and Development Research

All that has already been said above with respect to non-doctrinal legal research applies in the
aspect of law and development research. This aspect strenuously lays emphasis on empirical
techniques for eliciting data to analyze the working of law in the society. Most non-doctrinal
legal research falls under this category. The major objective of this aspect of non-doctrinal
legal research is not to analyze legal rules on their own per se, but to analyze the impact of
these legal rules on the subject matter which such rules purports to be regulating or
prescribing for, in terms of a particular legal behaviour.
24
 Take for instance, the case of land law. Law and development research would not so
much be concerned with the question what are the legal rules governing land tenure (even
though knowledge of these may be a pre-requisite) as with the substantive issue of whether
such rule affect agricultural productivity, if not, whether changes in term can lead to
increased agricultural output, and indeed whether any changes are needed in the legal process
to make any lands reform programme effective

In the same view, whilst doctrinal research would merely focus on the rules dealing
with the formations of an enforceable agreement, the definition of breach, and the
establishment of damages for breach of contract, law and development research would
examine the impact of contract law on the behaviour of businessmen. It would seek to
determine

1. the extent of which businessmen actually make use of contract as a device for doing
business with others and resolving disputes

2. Whether the legal rules and processes in the contractual area are adequate. If not,
whether the changes in them could facilitate commercial relationships and thereby
lead to increase economic activity, or vice versa?

The same analysis goes for company law and tax. Here, law and development research would
be concerned with economical growth and productivity in various ramifications and not
merely with the examination of detailed legal rules thereof. In the public law area like
constitutional law, the central issues could be whether the constitution facilitates the
achievement of greater distributive justice or robust political participation in society. If not,
whether new processes and institutions can be developed to deliver popular justice – social,
political and economic – what constraints there are in the society and how they can be
removed.

(b) Interdisciplinary Legal Research

Non-doctrinal legal research may also take the form of interdisciplinary legal research. This
aspect of non-doctrinal research is pristine by the insights which other academic fields can
bring into legal reasoning. Thus, legal research in this category draws on the literature and
methods of related disciplines such as political science, sociology, economics, finance,
psychology, literature and other humanities, like history. Interdisciplinary legal research may
take different forms, and the “legal” elements of the research may become so incidental that
some may argue that the work has ceased to be a “legal” research at all. Additionally, the

25
methodology used in this kind of research is often very complex because of the nexus of
different disciplines with their own different methods of data elicitation and analyses.

An interdisciplinary approach may bring significant insights that are not available in
the context of a purely doctrinal or “black-letter” approach. However, there may also be
significant drawbacks in pursuing an interdisciplinary project – not least the need to be
sufficiently expert in two or more distinct disciplinary fields, each with their own discourse,
methods and body of literature. Also, care has to be taken with respect to how effectively
concepts from one discipline are transferred to another, because the same concepts may have
different connotation in the different disciplines.

There are different forms which interdisciplinary legal research may take, for instance, it may
take the form of:-

(i) Law and Political Science/International Relations

Seeks to bring together understanding of the legal order as a legal system and as a political
system. There are many, different approaches in the study of international relations and
political science, including liberalism, realism, critical theory, post-modernism,
constructivism, feminism and Marxism.

(ii) Law and Economics

A method of appraising (rather than finding) the law. It attempts to explain law as it is, or as
it ought to be by reference to economic analysis. There are two main strands to law and
economics approaches

(a) Research that seeks to explain current law on the basis that it reflects economics
thinking, and

(b) Research that seek to make proposals to improve the law in order to make it more
efficient in some way.

(iii) Law and Sociology

Law and sociology approaches are based on the assumption that law exists in, and is
developed through society (i.e. social engineering). Law is regarded as a social practice – to
some extent it both reflects and seeks to shape society, i.e. it is not possible to understand law
without understanding the society in which it operates. Law and sociology approaches are
interested in discovering law in action as opposed to just “law in the books”.

26
 (iv) Law and History

Applies some of the insights that historians have to offer on the interpretation of events, to
law and legal processes. Historical approaches to the law can help to ground arguments in
their historic-political context and cast new light on events that have been forgotten or
misunderstood. Courts and their proceedings are particularly amenable to documentary
research.

(c) Scientific Legal Research

Some aspects of non-doctrinal legal research have laid claim to the use of scientific methods
of analysis. Science is said to be about constructing models and testing falsifiable hypotheses.
This is the conventional form of methodology in most science and social science disciplines
(i.e. natural science and social science). In these disciplines most of the times, experiments
are conducted to test these models (i.e. either controlled or non-controlled experiments).

In legal research however, not until recently, legal academics have hardly taken part
in this scientific methodology, perhaps that is why there are no Nobel Prizes in ‘legal
science’. Even though the term ‘legal science was (and is) occasionally used by traditional
legal academics, their definition of science only denotes the effort accurately to describe the
law which can be used to solve legal cases in a deductive way. This mere description of the
law is not science in a genuine sense. There are various reasons that have been given why the
legal sciences have been reluctant to take part in core scientific methodology:-

1. Lack of training, particularly in empirical methods

2. Teaching of legal studies is often focused on preparing students for legal practice,
which have the effect that legal academics are usually more concerned with an
accurate and coherent description of law than with scientific theories about it.

3. The subject matter of legal research also plays a role. Legal research often has a
reactive quality because it sees its prime purpose as being to address new legal rules
or court decisions and because it deals with competing values, legal researchers often
see themselves unable to use the more objective scientific methods, and

4. In contrast to natural and many other social sciences time and national borders matter
a lot in legal research which restricts its generalisability and the possibility of getting
the same results from experiments. Therefore, there is hardly any acceptable theory of
law that applies to every legal system and to which legal scholars in every country can
appeal in explaining the particular institutions or rules of their own systems.

27
In recent years however, there has been some development that support the use of scientific
methods in legal research for instance, experiments can make legal research scientific. This
“experimental legal research” is not widely used but there are a few examples. Most of these
examples concern the likely impact of legal rules for example; it has been examined whether
damage caps affect the parties’ behaviour in lawsuits. In experiments it has been
demonstrated that the level of the damage cap influences the probability of an out-of-court
settlement (see research conducted by Babcock and Pogarsky “Damage caps and settlement:
A behavioral Approach” (1999) 28 J. legal studies, 341-370.

Law and finance also adopt a peculiar methodology that supports the use of
calculations in legal research (i.e. statistical and quantitative methods). For instance, legal
research could be conducted to ascertain whether specific legal features, such as particular
legal rules or the effectiveness of courts, correlate with financial data, such as a country’s
stock market capitalization. (See e.g. M. M. Siem, “Legal Origins: Reconciling Law and
Finance and Comparative Law” (2007) 52 McGill L. J. 55-81

One may also use statistical methods to examine whether

(a) the strength of employer protection is a result of differences in politics,

economics, or legal origins (see J. Botero et al, “The Regulation of Labour”,
(2004) 119 Q. J. Econ. 1339-1382)

(b) legal formalism influence the duration of law enforcement (see S. Djankov et al,
“Courts” (2003) 188 Q. J. Econ 453-517)

(c) the death penalty or abortion laws have an effect on the crime rate (see Donohue
& J. Wolfers, “Uses and Abuses of Empirical Evidence in the Death Penalty
Debate”, (2006) 58, Stan. L. Rev. 791-846)

The above are just few examples of how statistical scientific methods are used in legal
research.

(d) Legal Research Involving Non-Legal Topics

All of the approaches outlined above in non-doctrinal legal research have in common the fact
that they Use legal questions as a starting point. This is even true of scientific legal research
since it only incorporates the scientific methodology into legal thinking. However, there is a
category of non-doctrinal legal research which is very prevalent in U.S. law journals, that
begins with general questions which are not about the law as such but legal elements are

28
considered as one of the several explanations which are brought forward in order to explain a
particular extra legal phenomenon.

The non-legal approach has recently become increasingly popular in commercial law.
For example, it is quite common nowadays for academic company lawyers to use the title
“corporate governance”, and analyse many factors – the law being just one of them – which
determines how a company is governed. (See for example, Jin Zhu Yang, “The Anatomy of
Boards of Directors: An Empirical Comparison of UK and Chinese Corporate Governance
Practices”, (2007) 28 Comp. Law 24-32)

This approach is however not limited to commercial issues. For example, it can also
be analyzed what factors contribute to high crime rate in a particular state or country. One
can examine the strength of law enforcement, the existence of the death penalty, the
availability of child welfare, and possibly also abortion laws. One can also consider the
impact of education, wealth, income inequality and the composition of the population with
respect to age, sex, urbanicity, ethnicity and race. Issues of climate change have also formed
a major theme of non-doctrinal, non-legal research.

MODULE 3, UNIT3

NATURE AND PURPOSE OF NON-DOCTRINAL / SOCIO-LEGAL RESEARCH

METHODOLOGY

The major objective of socio-legal research is to conduct enquiry that goes beyond formal
legal rules and focuses on substantive impact of the legal system on the people, their values
and institutions, with the view of promoting the role of law in the development of a modern
nation. This type of research is required to probe the relationship between major and rapid
social, economic and political change and the legal order. It is required to examine how law
can be used to bring about substantial and rapid change (law as social engineering). Equally
important is the requirement that the research must show an understanding of the impact of
rapid economic growth, industrialization and urbanization, inflation etc. on traditional legal
systems, traditional values as well as any adverse consequences such as prostitution,
violence, insecurity and criminality that may flow therefrom. The range of issues on the
agenda of socio-legal research is quite wide, taxing the capacity of the legal profession to a
breaking point. Because of its focus towards the behavioral sciences, empirical legal
methodology needs the assistance and cooperation of the social sciences in respect of the
congeniality of their theories and methods.

To be more specific, non-doctrinal legal research seeks to:-

29
 (a) Assess the impact of non-legal (e.g. economic development, growth of
knowledge, technical changes) upon legal decision processes.

(b) Identify and appraise the magnitude of the variable factors influencing the out-
come of legal decision-making, and

(c) Trace the consequences of the out-come of legal decision-making in terms of

value, gains and deprivation for litigants, non-litigants, and non-legal
institutions.

Apart from the above objectives of non-doctrinal legal research, the purposes or use of non-
doctrinal legal methodology may be as follows:-

(a) Impact Analysis

This is to analysis the impact of an established or a newly conceived legal provision, rule or
institution. Study of the impact of law becomes urgent when legislative action is used for
planning. Impact analysis is the study of the effect of law in, and on the society. Its primary
aim is to assess the actual working of the legal order in terms of the satisfaction of the
expected object of a given legal provision. As a constructive review, it helps monitor the
success or failure of a given provision, locate the bottleneck if any, and finally revise the
provision, if necessary.

(b) Projective and predictive

Here non-doctrinal research is used to anticipate the effect of a proposed legal measure. The
studies are attitudinal and intended to anticipate the probable response in terms of rejection or
acceptance of a proposed measure. On the other hand, predictive studies are useful in gauging
the possibilities of misuse of the proposed measure and help minimize the incidence of
undesirable consequences of the proposed measure.

(c) Interactive

Socio-legal research may be used to study the process of interaction between law and other
relevant forces, factors and institutions operative in a society. Legal research in this category
is concerned with the problem of (1) the relative autonomy of law vis-a-vis the other
components within the legal system (2) the relationship between various components within
the legal system, and (3) the interdependence of one or more components of law within the
legal system.

(d) Statistical Analysis

30
Socio-legal research may involve the gathering of statistics, which will give an idea of the
actual working of the law. This type of research provides quantitative illustrations of the
dynamics of certain social processes, or serves to arrange the sets of available data in
numerical terms. It is mainly concerned with the collection and collation of data useful in the
verification of hypotheses with respect to the influence of definite factors upon law or vice
versa.

MODULE 3, UNIT 4

LIMITATION OF NON-DOCTRINAL LEGAL RESEARCH IN NIGERIA

The factors inhibiting non-doctrinal research in Nigeria could be summarized as follows:-

1. Lack of adequate financial support.

2. Backwardness and indifference of legal scholarship in Nigeria. Legal scholars and

lawyers are almost obsessively pre-occupied with doctrinal research with
complete indifference towards empirical research, which often borders on
arrogance. Often times too, legal scholars even identify themselves more with the
practicing Bar than with a scholarly community.

3. Law lecturers are pre-occupied with the teaching functions and their arm-chair
doctrinal research for the purpose of publication for promotion and to enhance
their income.

4. Law lecturers and lawyers in general are not adequately trained in techniques of
empirical research, which is why this course is necessary in Nigerian Universities.

31
 MODULE 4

MODULE 4, UNIT 1

ETHICAL ISSUES IN LEGAL RESEARCH

A) INTRODUCTION

The importance of considering ethical issues in any kind of research cannot be over-
emphasized. The issue of insistence that the process of research adhere to sound ethical
principles is certainly not opened to debate in legal research. Ethical principles are essential
in order to ensure that conclusions drawn from research are valid and that the integrity of the
methodology used in arriving at such conclusions is beyond reproach. However, what exactly
are these ethical principles, what is the underlying philosophy for their insistence and who
should safeguard them or how can they be policed? These are the questions which we are
concerned with in this topic.

B) PHILOSOPHICAL ISSUES SURROUNDING “ETHICS”

Before delving into consideration of the individual ethical principles, it is pertinent to first
explain what exactly we mean by “ethics”. The question of “what are ethics” is purely
philosophical and has always been a central part of the study of philosophy. However, by its
very nature, ethics or moral philosophy has given rise to a lot of heated dialectical debates.
For instances, experts are yet to agree to any consensus definition of the subject. We shall
summarise briefly the various definitions put forward by writers:-

Fieser and Dowden in their “Internet Encyclopedia of philosophy, asserts that “The field of
ethics also called moral philosophy involves systematizing, defending and recommending
concepts of right and wrong behaviour”. Kallman and Grillo on their part argue that:-

“Ethics has to do with making a principle-based choice between competing

alternatives. In the simplest ethical dilemmas, the choice is between right and
wrong.”
What is deducible from these two definitions is that the concept of ethics entails a subjective
notion of what is right or wrong which is connected to ones emotions and his beliefs of the
basic sense of ‘right’ and ‘wrong’. The subjectivity of ethics is usually group-based
depending heavily on culture, or code of conduct belonging to professions or group of
persons. Thus, Marshall in his Dictionary of Sociology defined “research ethics” as:-

The application of moral rules and professional codes of conduct to the

collection, analysis, reporting and publication of information about research
subjects, in particular active acceptance of subjects’ rights to privacy,
confidentiality and informed consent.
32
Note that the terms “moral” and “ethical” tend to be used interchangeably when discussing
such considerations in research. However, in the field of philosophy these terms are not
necessarily the same thing. In philosophical literature the term ‘ethics’ is a general term for
the consideration of what we ought to do, think, feel or be. Morality on the other hand refers
to a subset of ethics which focuses on our obligations and what is right. These two concepts
are condensed into one notion when considering the conduct of research, which is simply
deciphering the obligation to do what is right in the conduct of research within the field of
study.

In research, ethical issues come up at every stage of academic work. In social sciences
or socio-legal research ethical issues come up at the stage of collection of data, and in every
other field, at the stage of writing up the thesis, report or manuscript for publication in
journals or when the work is presented as technical talks.

The reasons for insisting on certain principles or codes of morality in every discipline
in that apart from the need to verify the results of the research, the outcome of almost every
research work has the tendency to affect (a) in empirical or socio-legal research, the human
participants who are used for experiment (either psychologically or health-wise), (b) the
society, where falsified data derived from research is used for policy formulation, and (c) the
academics or system of learning, where others’ (i.e. academic colleagues, authors or writers’)
ideas are indiscriminately misrepresented or stolen. All these reasons make the observance of
ethical issues in any research an imperative.

In legal research ethical issues are involved at all the stages of research (i.e. processes
of collection of data, and analysis and writing of the work). However, there are two
categories of ethical issues in legal research.

(a) Ethical issues involved in empirical or socio-legal research, which are particularly
focused on the process of data collection where data involves use of human
participants

(b) Ethical issues involved in every legal research pertaining to the process of completion
or writing of the work relating to “academic dishonesty”.

MODULE 4, UNIT 2

ETHICAL ISSUES IN SOCIO-LEGAL RESEARCH

In socio-legal research just like every other aspect of social sciences and scientific research
that involve the use of human subjects, certain ethical guidelines and standards have over the

33
years been made to regulate how research is done in relation to the rights of the subjects
involved.

Though most of the ethical issues involved in research of the type mentioned above
were first discovered in medical research, these issues have equally been strongly noticed in
social science research that involves human subjects and therefore similar standards and
principles became necessary in all such aspects of research. Two key events led to the
growing consensus on ethical standards in scientific and social science research. The
Nuremberg war crimes trials following World War II brought to public view the way German
scientists had used captive human subjects as subjects in oftentimes gruesome experiments.
Also, in the 1950s and 1960s, the Tuskegee syphilis study involved withholding of known
effective treatment for syphilis from African Americans participants who were infected.
These events forced the re-examination of ethical standards and the gradual development of a
consensus that potential human subjects needed to be protected from being used as “guinea
pigs” in scientific and social research.

The most important principles adopted when dealing with human subjects to try to
protect their rights better are:-

(A) The principle of voluntary participation

This requires that people should not be coerced into participating in research. This is
especially relevant to end the show of shame where researchers had previously relied on
“captive audience” for their subjects (i.e. prisons, Universities, villagers etc.)

(B) Informed consent

This is closely related to the principle of voluntary participation. Essentially, this means that
potential research participants must be fully informed about the procedures and risks involved
in research who must also give their consent to participate.

(C) Risk of Harm

Ethical standards also require that researchers not put participants in a situation where they
might be at risk of harm as a result of their participation. Harm is to be defined as both
physical and psychological.

(D) Confidentiality and Anonymity

These are two principles that apply to help protect the privacy of research participants. They
must be assured that information identified will not be made available to anyone who is not
directly involved in the study. The stricter standard is the principle of anonymity which
34
essentially means that the participant will remain anonymous throughout the study,
sometimes even to the researchers themselves.

All these ethical standards in socio-legal research can be trace to have their roots in
the fundamental human rights of participants, which to a large extent are legally enforceable.
For instance, voluntary participation, informed consent and risk of harm are all derived from
the right of privacy (s.37 CFRN 1999) right to dignity of human person, right to life and right
to freedom from discrimination. Confidentiality on the other hand, could be enforceable
under the tort of professional confidentiality.

MODULE 4, UNIT 3

ETHICAL ISSUES IN BOTH DOCTRINAL AND NON-DOCTRINAL LEGAL

RESEARCH

Apart from ethical issues that more appropriately concern socio-legal research, which
involves use of human subjects, there are a variety of other ethical issues bordering generally
on academic dishonesty involving both doctrinal and non-doctrinal legal research. These
issues relate to the process of data gathering, writing and claim of authorship.

There are different aspects or types of academic dishonesty, which connotes violation of
some basic moral/ethical principle in the field of academics. These varied types of academic
dishonesty range from the most serious, which is plagiarism, to others like cheating,
fabrication and falsification, non-publication of data, poor data storage and retention, and
misleading authorship. Below is a brief discussion of each of these methods of academic
dishonesty which violates the academic standards in academics.

(A) PLAGIARISM

(1) Definition of Plagiarism:

Plagiarism is a serious academic offence prohibited by every learning institution (University

guidelines) and also punishable by law (Copyright law). This involves the theft of another
person’s intellectual property, which could be ideas expressed in academic publications or
other published media. To fully understand the concept of plagiarism, it is important to first
comprehend the concept of authorship in contemporary learning systems.

Authorship refers to the production and ownership of ideas and intellectual materials,
such as books, articles, images e.t.c. the higher education system in every country places
great premium on recognizing the producer and owner of such materials which is considered

35
as individual property. Therefore, improper or incomplete acknowledgement of a source of
information is treated as intellectual theft. The proper name is ‘plagiarism’.

The concept of authorship has an impact on all aspects of academic work, not just the
way users of information are expected to apply referencing conventions. Hence, at the
University, students are encouraged to develop their own ideas and construct their own
knowledge, using established knowledge as a foundation. They are encouraged to ‘find their
own voice’, which means developing their unique academic style of writing “authorial
voice”. Thus, the importance of understanding the concept of authorship, involves, but
certainly goes beyond avoiding plagiarism.

Plagiarism is a multi-faceted academic offence in any scholarly environment and an

ethically complex problem. Because of its varied nature, it is difficult to define in precise
terms. A simple and direct definition in any academic setting is that:-

Plagiarism occurs when a writer deliberately uses someone else’s language,

ideas or other original (not common knowledge) material without
acknowledging its source.
An academic source used in preparing a write up (article, paper, essay, presentation,
assignment), could come in different form. It may be a nicely constructed sentence, or a
couple of paragraphs, ideas, experimental data, graphs, theoretical predictions, sketches,
cartoons schematics, figures e.t.c, and these may be taken from any source such as books
journal articles, thesis, report, web pages on internet, newspaper, email, visual, spoken or
musical materials.

The only instance where a person is allowed to use materials from another person’s
work without acknowledging it, is, when such information or idea constitute “Common
knowledge” in a field. Common knowledge refers to historical, scientific, geographical,
technical and other types of information on a topic readily available in handbooks, manuals,
atlases and other references.

(2) Forms/Types of Plagiarism:

The different forms which plagiarism may take in an academic setting are:-

(i) Copying someone else’s work as if it were your own

When a person uses a source for preparing any document and simply copies whole sentences
or paragraphs as though they were his own, this is plagiarism even if he acknowledges the
source and even though the person believes that the sentences or word express the point
better than he could do.

36
 (ii) Copying sections of someone else’s work but changing the odd words or
phrases

This is also plagiarism, provided the person using the information does not
acknowledge the source.

(iii) Submission of a written work produced collaboratively

Here where a person submits or uses a piece of work that is produced collaboratively
as if it were only his work, it constitutes plagiarism. On the other head, it may also amount to
“collusion” if the person submits or uses such work as if it were solely his own with the
consent of the group or other collaborating partner.

(iv) Commission of others to write a work or use of a work by a student which is

not his or her own and representing it as if it were (e.g. paying ghost writers, wholesale
downloading of materials from the internet and practice of cut and paste).

(v) Duplication of the same or almost identical work and submission to two
different courses for purposes of being assessed.

(vi) Copy and submission of another person’s work without that person’s
knowledge or consent.

(3) Penalty for Plagiarism

Every institution of higher learning considers plagiarism as a serious academic

offence worthy of being penalized under the University’s disciplinary regulation. The penalty
may vary from one university to the other but certain common features are identified as
recurrent for the purpose of penalty. Apart from constituting a university offence to be
punished by the university regulation, plagiarism may also constitute criminal offence in
different circumstances including offences under the Copyrights Act.

3.1 Plagiarism as university offence

Most university disciplinary regulations define what would amount to plagiarism in

the course of academic pursuit in the university. Usually, plagiarism is manually detected by
the teaching staff through the process of verification of the originality of works/essays/papers
submitted by students. This can arise through the lecturer’s detailed knowledge of the subject
and related literature. Cases can also be detected through other means such as unexpected
increases in grades achieved by the student and inconsistencies in the style of work including
variations in the use of or ability with the language. In recent times, in the developed
countries, plagiarism can also be detected through electronic means, such as use of Turnitin’s
37
Web based plagiarism prevention software. The software enables the university to conduct an
electronic comparison of students’ works against a range of electronic sources on the internet.
These sources include a database of previously submitted materials (student essays and
assignments), over 12 billion websites, essays from cheat-sites, data bases and journals.

In most universities, the penalty for plagiarism is proportionate to the gravity of the offence
or intention of the offender. Thus, where the case involves:-

(a) Minor offence of plagiarism (over-reliance on sources without sufficient evidence of

the student’s own work; significant cases of plagiarism at an early stage of
undergraduate study; few portions of plagiarism in a work that contribute to the
overall mark), the penalty is usually a written warning to the student involved and re-
assessment of the work to reflect the actual academic quality of the work.

(b) Significant offence of plagiarism (involves works where large portions have been
copied from online sources without acknowledgement; work where the plagiarized
element would contribute significantly to the mark for the course:-

(i) For first offender – the penalty is re-marking the work with the plagiarized
portion removed and written warning.

(ii) For first offender who is a post-graduate student the penalty is usually the
score of Zero awarded.

(iii) For all second offenders, depending on the severity of the offence, the
penalty is either mark of zero for the entire course or suspension from academic
activities for a period of time or outright expulsion from the university or
suspension and a fine (usually heavy).

In Ebonyi State University, like most other Universities Nigeria, there is no

disciplinary regulation that specifically prohibits the academic offence of plagiarism in all its
form mentioned above. However, a cursory look at the EBSU academic regulation may
reveal a few regulations that support the prohibition of plagiarism and other academic
offences, (see particularly pages 50 – 58 of the EBSU General & Academic Regulations).

3.2 Plagiarism as criminal offence

In some limited cases, plagiarism may result in a criminal offence. For instance, it
may involve any of the following criminal offences:-

(a) Theft or stealing - (e.g. taking another student’s paper from his/her possession, or
from the possession of a faculty member without permission.
38
 (b) Breaking and entering (e.g. forcibly entering an office to gain access to paper,
grades or record.

(c) Forgery

(d) Personation and conspiracy (impersonating another student by agreement and

writing his/her paper.

In all these instances, plagiarism is associated with other offences which are criminal
in nature and prohibited under both the Criminal Code and Penal Code in Nigeria. In such
cases, the university may refer the matter to the police authorities in addition to, or in
substitution for any action taken under its own Regulations to punish the offender.

Apart from the above cases where plagiarism is only associated with criminal
offences, there are other circumstances where plagiarism in itself may amount to a criminal
offence, whether in a university learning environment or in the society in general. The one
particular circumstance where this could happen is where the provision of the Copyright Act
of Nigeria is violated.

Note that in our description of sources that can be plagiarized, we mentioned

published books, journal articles, internet materials, musical and visual materials e.t.c. The
student and often even experienced researchers are at cross-roads about how to legally
incorporate all / any of these materials in their essays, presentations e.t.c without violating the
provisions of the Copyright Act, (in Nigeria section 6 of the Copyright Act 2004). The
penalties for violation are provided in sections 19 and 20 of the Act.

The Act defines literary works which in protected under section 6, as including novel,
textbooks, essays and articles, lectures, addresses e.t.c. These forms of academic sources
readily constitute the bulk of plagiarized work in Nigeria.

Please note that the Second Schedule of the Copyright Act provides an interesting
exception of literary works protected under section 6, for fair use (fair dealings) for purposes
of research (educational purposes) provided that such use of the literary work is accompanied
by an acknowledgement of the title of the work and its authorship.

Thus, an extensive adaptation, or copying of a literary work even for educational

purposes without proper acknowledgement (which amounts to plagiarism) may still constitute
a breach of the Copyright Act and the commission of offence. However, in determining
whether there is violation of copyright where literary works are used for educational
purposes, and therefore the commission of an offence, the court is usually interested in

39
finding out whether there was fair use or fair dealings. Four conditions are usually considered
in determining fair use, which are:-

(a) The purpose of the use,

(b) The nature of the copyrighted work

(c) The amount or percentage of the work used, and

(d) The effect of the use on the original work.

Based on these criteria some uses of copyrighted works are more likely to be protected than
other. Again, there are few hard and fast rules concerning educational approach, uses meeting
these conditions are more likely, though not guaranteed to be protected.

Many people assume that any educational use of a copyright work is legal. That is not
accurate. However, the law does recognize the unique situation of non-profit educational
institutions when it comes to fair use issues. Purposes that are specifically mentioned in the
Second Schedule of the Act include, “research, criticism or review”. Fair use for these
purposes will be more likely adjudge if a considerably small portion of the copyrights work is
used. It is recommended that such used should not be more than 10% of the entire work.
Also, courts often favour uses that transform the copyrighted work into something new by
adding criticism or commentary to change the meaning or message of the original.
Educational use is protected to allow creativity and intellectual expression, so educational
expansion of the copyrighted work is more likely to be protected.

(4) How to avoid Plagiarism

Oftentimes users of information for academic purposes find it difficult to reconcile the
expectation of the system for originality and the inevitability of using other people’s works
(i.e. sources) in completing their works. The usual expectation in the academic community is
that:

(a) Users of information are encouraged to develop a topic based on what has already
been said and written, but themselves, write something new and original.

(b) Users of information are encouraged to rely on opinions of experts and authorities on
a topic but improve upon and/or disagree with those same opinions.

(c) They are encouraged to give credit to researchers who have come before them, but at
the same time make their own significant contribution in the areas.

40
 These contradictions often confuse amateur users of academic information and often
times lead to plagiarism as users are unable to integrate previous works/ideas into their own
independent and critical opinions, without resorting to whole-some borrowing.

The expectation of originality in academic work is not taken as seriously as the need
to make clear and honest acknowledgement of other’s works. In fact, appropriate use of
academic sources almost invariably leads to production of a unique, independent and original
work. Some of the benefits of appropriate referencing to avoid plagiarism are:-

(a) The user of information receives credit for his own handwork and research (in
learning environment it earns him extra score).

(b) The user of information demonstrates his intellectual integrity by conforming to

agreed academic standards of good practices.

(c) The user of information contextualizes his work to show how it relates to current
research and debates.

(d) The user of information exhibits some measure of academic maturity by being able to
read, extract and use a source, acknowledge the debt to it and use it in a sophisticated
way in his own argument.

The user of information directs the reader to sources of information to enable the reader
follow up on the sources either for verification or further use.

There are various good practices, which a researcher would have to Imbibe to avoid
plagiarism. The quest to do away with plagiarism in our educational system does not however
stop at the doorsteps of the student; it must involve a collaborative effort with the university,
faculty, academic staff and the student.

On the part of the student, or any researcher at all, he must gain understanding of the
following:

(a) How to integrate the ideas of others and document the sources of those ideas
appropriately in his work.

(b) Learn how to assemble and analyze a set of sources which he determines are relevant
to the issues he is investigating.

(c) Learn how to acknowledge clearly when and how he draws on the ideas or phrases of
others

41
 (d) Learn the convention for citing and referencing documents/materials and
acknowledging sources appropriately in legal research/study.

(e) Learn how to paraphrase, quote and summaries sources correctly.

On the part of the faculty and academic staff, the following are necessary instructions and
processes which must be followed to help obviate the practice of plagiarism in the learning
environment:-

(a) Stating, publishing in clear terms the faculty’s policies and expectations for
documenting sources and avoiding plagiarism.

(b) Teaching students the conventions for citing/referencing documents and

acknowledging sources in legal research and allowing students to practice these
skills.

(c) Avoiding the use of recycled assignments that may invite stock or plagiarized
responses.

(d) Including in the faculty syllabus a policy for using sources and discussing it in a
course designed for research.

Finally, on the part of the University, the most enduring safeguard is the publication of the
university’s policies and expectations for conducting ethical research, as well as procedures
for investigating possible cases of academic dishonesty and its penalties; supporting faculty
and student discussions of issues concerning academic honesty, research ethics and
plagiarism; and recognizing and improving upon working conditions, such as high teacher-
student ratio, that reduce opportunities for more individualized instruction and increase the
need to handle papers and assignments mechanically.

For the students, the most enduring way to avoid plagiarism is to learn how to paraphrase,
quote and summarize academic sources correctly. This is where we turn now.

Paraphrasing, summarizing and quoting

There are various website which the student can visit to learn how to report ideas derived
from academic sources adequately. Two of these sites are:-

(a) http://www.english.vt.edu/~IDLE/plagiarism/plagiarism3.html

(b) www.jiscpas.ac.uk.

Summary and paraphrasing are two ways of reporting ideas from available sources. The third
is quotation. Both paraphrase and summary require the researcher to provide his own report
42
of ideas that he has heard or read about. Both represent a careful re-working of an author’s
ideas or argument without compromising the researcher’s own opinions.

Paraphrasing involves putting a passage from the source material into the researcher’s own
words. Merely changing a word or two is not paraphrasing; this does not give any indication
of the researcher’s own understanding. A paraphrase must also be attributed to the original
source by acknowledgement.

Summarising on the other hand, involves putting the main ideas into the researcher’s own
words, including only the main points. The summarized version of the source must also be
attributed to the author by acknowledgement.

Quotation must be identical to the original, using a narrow segment of the source. They must
match the source document verbatim and must also be attributed to the source by
acknowledging.

(B) FABRICATION AND FALSIFICATION: -

Apart from plagiarism, which is the most serious aspect of academic dishonesty, there is also
some measure of dishonesty especially in socio-legal research if the researcher fabricates or
falsifies data. This is where the researcher cooks up data about a phenomenon that did not
actually occur just to complete his work. It may involve overstating number of human
subjects, changing data, including personal biases, and misinterpreting literature (often occurs
that students misquote authors, especially in the literature review section). This is a
dangerous practice because it leads to the production of faulty research which if relied on for
policy formulation may lead to failure beyond the scope imagined.

(C) NON-PUBLICATION OF DATA:-

Here, the dishonesty lies in the fact that data is suppressed so as to achieve a certain pre-
determined result. It is not ethical to ignore exceptions, in fact it is better to try to explain
such exceptions. Finding nothing of significance is just as important in research as finding
something of significance.

(D) POOR DATA STORAGE AND RETENTION:-

This is also a form of academic dishonesty because it involves the shielding of certain data
from the reader for whatever reason. Data should be available in every research so that it is
verifiable, if it becomes necessary.

(E) MISLEADING AUTHORSHIP: -

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This is closely related to the issue of plagiarism. If the researcher was extensively assisted by
another person and he gives all the credit for the work to himself, this amounts to misleading
authorship, which is a form academics dishonesty. The usual thing to do is not to take credit
for things you did not do.

Other forms of academic dishonesty, which may not strictly relate to the conduct of
research, but which all the same constitute misconduct which affects quality learning in an
academic environment includes, but not limited to tampering or attempt to tamper with
examination script, class work; grades and/or class records; failure to abide by instructions
regarding the individuality of work handed in; the acquisition, attempted acquisition,
possession, and/ or distribution of examination materials or information not authorized by
the faculty; impersonation of another student in an examination or other class assignment; the
falsification or fabrication of reports; and the writing of examination outside the confines of
the examination room without permission to do so.

44
 MODULE 5

TYPES AND PROCESSES OF LEGAL RESEARCH WRITING

MODULE 5, UNIT 1

It should be noted that legal research in the long run, must definitely culminate in an
outcome, which is the preparation, writing and completion of a research report. This report as
a product of a diligent legal research effort involves some processes in the gathering and
analysis of sources in order to attain the highest possible standard of professionalism and
avoid copying of other’s works without permission (i.e., plagiarism). Thus, legal research is
not an end in itself, but a means to an end, which is the completion of a particular legal
writing/report. Generally, legal research outcomes can be categorised into two: i.e.

a) Academic output culminating in the writing of academic research report, and

b) Professional output culminating in the writing of a professional research report.

A) Academic Legal Research Output/Writing

Academic legal output culminates into four types of academic research writing/reports,

a) term paper,

b) professional peer-reviewed academic paper,

c) executive funded report/monograph

d) degree dissertation/thesis

B) Professional Legal Research Output/Writing

On the other hand, professional legal output culminates into several professional writings
including:

 Brief writing
 Drafting of professional advice and agreements
 Preparation of arguments in court viva voce.

In this course, we will focus more on academic legal outputs arising from legal
research. Other courses may dwell more on teaching how to draft professional legal
documents. Thus, the research term paper is primarily concluded by students as essential
requirement in all law courses, for continuous assessment purposes. It usually discusses legal
issues presented by the course lecturer and aims to examine the students’ argumentative skills
and knowledge of the specific area of law.

45
 The professional peer-reviewed or refereed academic paper is mostly concluded
by academics or other legal experts on any specific legal issue from a highly professional
perspective, and is submitted for publication in reputation law publications such as journal
and books. The professional academic paper may also be concluded by students, but the aim
is not to score marks or be graded in their respective courses, rather it is meant to achieve the
same purpose of quality publication in reputation journal. This is highly encouraged in
developed academic systems. However, the professional academic paper is one that must
stand the test of peer review assessment by two or three experts in the field or if the legal
publication is by students, the student editors.

The funded legal report/monograph is a different form of academic legal writing, it

is neither aimed at scoring grades nor professional publication in journal. However, it is
usually a funded legal research project to achieve specific objectives stated by the sponsors.
Most of such legal research is socio-legal, but they may also involve doctrinal research to
explain, analyse or clarify specific legal issues. This kind of research is usually conducted by
the most accomplished legal experts in the areas of law concerned.

Lastly, the degree dissertation/thesis/long essay is another genre of legal writing

which culminate from a legal research exercise. This is also concluded by students for the
purpose of final assessment for the award of different types of law degrees, i.e. bachelor’s
degree or graduate degrees like LL.M or Ph.D.

MODULE 5, UNIT 2

PROCESS OF CONDUCTING LEGAL RESEARCH

Whether the legal researcher intends embark on research leading to an academic or

professional outcome, he must understand the process of identifying, retrieving and using the
large body of information to resolve the perceived legal problem/issue. There are different
steps that a legal researcher must take in the process of conducting research, which are:

(a) The first step is the identification and understanding of the legal issue(s) involved in
the research
- In academic legal research, this identification involves looking at the main
theoretical or conceptual issues involved in the question/problem raised.
- In professional legal practice, one can use the TARP method of identifying legal
issues (see “Basic Legal Research Techniques” at pages 23 – 26).
(b) The second step after identifying the legal issue(s) is consulting secondary sources on
the issue to enable the researcher gain better insight into the issue. Secondary sources
46
 explain the law and contain references to cases, statutes and other primary sources.
This will help the researcher expand his knowledge about the issue and appreciate the
available laws governing it. (See Basic legal Research, pages 27 – 28).
(c) The third step is identifying the primary sources relevant to the issue, retrieving them,
understanding them and applying them to the legal issue to solve the problem. No
matter how expansive secondary sources may be, they can only guide the researcher
make an informed argument using the primary sources. Primary sources therefore are
the most authoritative sources that can sustain the argument of the researcher in any
form of legal research. (See the paper by Suzanne Rowe, page 3).

One very important issue for a good researcher to note is that he needs to acquire the skills to
find and retrieve relevant information in both secondary and primary sources. This is a sine
qua non for anyone who intends to be involved deeply in legal research.

As we noted before, our attention in this course is on legal research leading to

academic outcomes, i.e. term papers, professional peer-reviewed academic papers, funded
academic papers and research long essays/dissertations. However, we shall focus almost
entirely on only three of these outcomes/writings. That is the research term paper, the
professional academic paper and the degree dissertation. The fourth one, the funded legal
research may not be relevant at this stage.

There are usually two major steps in the preparation of these three types of research outputs:-

 Process of planning the research output/report

 Process of writing the research report in line with acceptable format and
structure

A) PROCESS OF PLANNING THE RESEARCH

The first step in the planning of a research paper/dissertation is the choice of a topic and
invariable the title of the paper/dissertation. In the case of most term papers, the course
lecturer may suggest the topic to the student, otherwise the student is left with the difficult
task of choosing a research topic. In the case of a professional academic paper or dissertation,
the author must first decide the topic of the proposed research.

How is a research topic chosen? First, the student or author must have already
thought of an area of law which has struck him as interesting, or controversial or as not
having received enough attention by researches or researchers in previous works or an area
which he feels that has been wrongly presented or analysed by past scholars or for several

47
other reasons. However, the student or researcher cannot reasonably claim to understand an
area of law enough to enable him form an opinion as described above, unless he has done
some preliminary reading in the intended area of research.

(1) Preliminary reading: Preliminary reading is also important in order to ascertain

whether or not the materials for research are available and also to learn more about the
dimensions of the subject area so as to reduce the topic to manageable proportions if
necessary.

Once the topic and title of the intended research is decided, the next step for the researcher is
to draw out a preliminary outline, which is tentative and lays out the proposed organization
and structure or plan of the paper/dissertation. When the structure or research plan is laid
down, the research enters the next stage which is an extensive location of materials (both
primary and secondary) on the topic and the commencement of the exploratory reading.

(2) Exploratory reading: exploratory reading helps in isolating the useful materials
and eliminating the unhelpful ones. It is at this stage that the researcher must make an
extensive use of recording devices, for the purpose of isolating the useful information and
recording the materials from which such information is gotten.

The most popular method of recording information gotten from source materials is by taking
notes on record cards. There are two types of record cards:-

2.1 Source cards: Used in indicating the source materials i.e. book, journals, etc
that are relevant to the research. This on the other hand also builds the
bibliography of the work. The full information on the source must be stated in
the source card for easy location and identification when needed.

2.2 Note cards: These are used to record notes on the very relevant and important
data read in the sources which relates to any of the divisions in the plan of the
paper. Here, the research records the full reference information of the source
and also records the particular data which he find relevant indicating the page
it appears in the source material.

One other important record device that helps the researcher both at this stage and later
stages is what is called the “ideas books or “Day Book”. This is recommended for every
researcher to ensure that flashes of ideas on any aspect of the paper are recorded down in the
idea book promptly as they come, to reduce the tendency of forgetfulness. The researcher is
advised to carry this idea book, which should be small enough to be carried around, wherever
he goes.
48
 At this stage of the exploratory reading the researcher becomes very conversant with
the source materials that would assist in the writing and makes a decision at this stage about
the following:-

 The suitability of the topic / title

 The adequacy of the data gotten from the available source, and if there is need
for further exploration.

After the exploratory reading, which identifies the relevant sources and indicates their degree
of relevance, the researcher enters the last stage of the planning process, which is the critical
reading and sorting.

(3) Critical Reading and Sorting: At this stage, the researcher critically reads the
relevant sources and cross-fertilizes them with one another, develops his own opinion by
agreeing or disagreeing with some of the sources, and finally comes to a definite resolution of
the thesis (major idea) of the paper, i.e. what he intends to argue and the result he intends to
achieve.

Also, at the final critical reading stage the research finally modifies the preliminary
outline or plan of the paper and makes if more permanent.

B) PROCESS OF WRITING THE PAPER TO CONFORM TO THE

ACCEPTABLE FORMAT AND STRUCTURE

This is the second and final stage in the preparation of a legal research paper/dissertation.
It involves the process of actual writing after the planning stage. The format or structure of
writing of research report differs greatly depending whether the legal researcher intends to
complete a report for an academic paper or a research dissertation. In general however, the
three types of academic legal reports (term paper, professional academic paper and research
dissertation) all have a similar format/structure, which consists of five parts i.e.-

 Preliminaries

 Introduction

 Main body

 Conclusion

 References

49
 MODULE 6, UNIT 1

FORMAT/STRUCTURE FOR TERM PAPER/PROFESSIONAL ACADEMIC PAPER

As we said earlier, the writing of a legal research paper, (whether term paper or a professional
paper) involves a systematic and in most cases, argumentative analysis of all the issues
identified as constituting the central thesis, not merely an explanatory or narrative
composition. Thus, for the researcher to convince the readers of the superiority of his
argument, the paper must conform to an acceptable structure and quality of presentation.
Every part of the research paper structure must reflect the researcher’s knowledge and
understanding of the topic. Following the format of academic legal research list above, the
structure of academic legal papers consists of the preliminaries, the introduction, the main
body, the conclusion and the references.

A) Preliminaries

This is the first part of the structure of a legal research paper. It consists of the title of the
paper, the author’s name and affiliation, the abstract and the keywords that describe the
subject matter of the paper. Here, the important thing is to know the content of an abstract.
What does an abstract contain? Usually, an abstract should not be more than 250 words. It
should a sentence or two describing the background of the paper or research, a sentence
describing the research problem and a sentence describing the purpose of the paper. The
abstract should also contain a sentence or two describing the research findings and the
recommendations.

B) Introduction

This is the first part of the structure of a legal research paper, and it forms a perfect platform
for the entire discussions that would be systematically unfolded in the body and conclusion of
the paper. The introduction must be gotten right for the paper to as much as achieve its
purpose. It must therefore do the following:-

(a) Be able to give the reader an idea of the forthcoming discussion in the paper

(b) Introduce and give background information about the topic and legal issues
intended to be addressed

(c) State and explain the questions that are raised as a result of the background
information provided, that is the questions which you intend to research

(d) State the intended methodology which would be used to arrive at the result in
the bid to answer the questions raised. The sources used could be very briefly
50
 mentioned if the researcher feels they might needed in understanding the
problems and methods.

(e) Very importantly, the introduction must contain the thesis statement: This is
the most powerful sentence in the research paper. It states the researcher’s
theory on the legal issues raised in the research questions. It must satisfactorily
address and provide a tentative answer to the research questions. The thesis
statement is the focal point of the research paper as well as the base of the
research. The entire success of the paper depends on how effectively the thesis
statement is projected and proved. It is usually written in one sentence.

(f) Must clearly contain the research roadmap that includes the demarcation and
breakdown of the different sections of the paper. This is very important
because it shows the reader at a glance the structure of the paper and the line
of thought of the research.

The researcher must ensure that the introduction is both inviting and informative, it catches
the interest and clearly informs the reader about the substance and central thesis of the paper.
It is the clear, concise and catchy nature of the introduction that usually keeps the reader
glued to the entire paper and arouses his interest.

C) The main body of the paper: Body paragraphs

The main body of the paper is compartmentalized in accordance with the roadmap provided
in the introduction. The roadmap may be further sub-divided into sub-heading and sub-parts,
which should be indicated with Roman numerals. The purpose of this is to further clarify and
simplify the line of thought of the researcher and enhances easy understanding.

The purpose of the entire main body of the paper is to knit together the different
sources and arguments in the body paragraphs in a systematic manner in order to establish the
thesis statement and answer the main questions of the paper. The main body is therefore the
platform on which to spread out the points collected in the course of research, argue the thesis
identified, present the evidence and draw the reasonable inference.

The main body should be:-

 Arrange in paragraphs which must move smoothly from one to another.

 Each paragraph should contain only one, or a maximum of two topic sentences
and all points made in the paragraph should be tied to the topic sentence.

51
  Written in accordance with the English rules of grammar, such as ensuring
the corrections of the subject verb, pronoun correspondence, parallel
grammatical structure etc.

 Not be written in passive voice and sentence should not begin with
conjunctions such as “and” or “but” and should not end with propositions.

 Written in sentences that are manageable in length, compound sentence should

be avoided and the verb should be located near the subject in each sentence.

D) Conclusion

The task of a lawyer is about winning arguments, which is extended to the success of a
research paper. This is done by leading substantial evidence and how that evidence is
handled. In the case of a research paper, the evidence is substantially led in the main body to
persuade the reader to agree with the researcher’s thesis, however, the conclusion should be
done in such a manner that it enhances the researcher’s argument by drawing the ultimate
inference from all the points made in the main body.

The conclusion has the power to make or ruin the entire research paper. The challenge
with the conclusion is that it must contain the essence of the entire research paper and the
researcher is expected to make a declaration of the success of his thesis by showing how the
evidence supports it. This is usually done by re-emphasizing the most prominent points of the
research paper. Sometimes, the researcher may just summarize the entire points made in the
main body.

E) References

No academic research is complete without the references. References serve the purpose of
acknowledgement of sources used by the researcher to complete the research report. We shall
deal with the subject of references in detail after looking at the format/structure of research
long essay/dissertation/thesis.

MODULE 6, UNIT 2

FORMAT/STRUCTURE FOR RESEARCH DISSERTATION/LONG ESSAY

A) Format in doctrinal research

As we earlier noted the format/structure for a legal research long essay or dissertation
depends on whether the researcher intends to undertake the research using either doctrinal
methodology or non-doctrinal/socio-legal methodology. In the process of planning the long

52
essay, the researcher will do well to follow the same method outlined under planning of term
papers/professional academic papers, i.e. the dilemma of choice of topic, the preliminary,
exploratory and critical reading stages and the use of recording devices.

The title of the long essay is not allowed to exceed 25 words and must be couched to
frankly and graphically capture the essence of the work as envisaged by the student. This type
of academic writing is usually divided into five parts, which include:-

(1) Preliminary part

(2) Introduction
(3) Main body
(4) Conclusion
(5) References/Bibliography

(1) Preliminaries

The preliminary pages usually comprise of the title page, certification page,
acknowledgements, table of contents , list of abbreviation, list of tables, table of statutes and
treaties, table of cases and most importantly, the abstract. The abstract is the summary of the
long essay and it indicates the main points, outcomes and conclusions of the research. It must
not exceed 500 words and must be bound in the preliminary pages of the long essay. The
entire preliminary pages must be paginated in small Roman figures (i.e. i, ii, iii), while the
main body of the work must be in Arabic numerals (i.e. 1, 2, 3).

The table of content is usually divided into chapters. In the case of the long essay, it is five
chapters; for masters, it is six chapters and for Ph.D., it is minimum of six and maximum of
seven chapters. Headings and sub-headings in the table of contents begin with Arabic
numerals in descending order. For example, see the outline below, a hypothetical long essay
topic broken down in chapters (the same hypothetical case can be seen in Yusuf Aboki,
Introduction to Legal Research Methodology, pp. 88-89).

CHAPTER ONE: Introduction

1.1 Background of the study
1.2 Statement of the problem
1.3 Research Questions
1.4 Objectives of the study
1.5 Research Methodology
1.6 Significance of the study
1.7 Scope of the Study
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1.8 Limitation of the Study
1.9 Literature Review

CHAPTER TWO: Proof of Title by Traditional Evidence

2.1 Introduction

2.2 Ways of Proving Title by Traditional Evidence

2.2.1 First Settler

2.2.2 First occupier

2.2.3 Conquest

2.2.4 Exceptions to Hearsay Evidence

CHAPTER THREE: Proof of Acts of Ownership

3.1 Introduction

3.2 Alienation

3.3 Reaping of Economics trees

3.4 Fishing Rights

3.5 Hunting Rights

CHAPTER FOUR: Proof by Long and Undisturbed Possession

4.1 Introduction

4.2 Long Possession

4.3 Undisturbed Possession

4.4 Notorious and Open

CHAPTER FIVE: Conclusions

5.1 Observations

5.2 Recommendations

5.3 Conclusion

Bibliography

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 (2) Introduction

As we said before, depending on the degree sought, the entire long essay/dissertation/thesis
may either contain five, six or seven chapters. However, notwithstanding the type of degree
sought, the first chapter of every long essay/dissertation/thesis is always constant, it is
normally titled “Introduction” and in the case of Masters /Ph.D. research works, it is also
known as “The Research Proposal” which must be presented and approved at a designated
“proposal seminar”. The content of this chapter includes the following clearly designated
parts:-

2.1 Background to the study

This is the background against which the long essay/dissertation/thesis is carried out.
It is a brief introduction outlining the general area of study and identifying the subject
area within which the study falls. Here, the student refers to the current state of
knowledge (i.e. research that has been done to date) and any recent debates on the
particular subject. Eventually this section clearly shows why research on the topic is
pertinent, thus justifying the choice of the topic.

2.2 Statement of the problem

This aspect of the proposal is to identify the specific problems with the particular area
of law or topic chosen by the candidate, which the long essay intends to solve,
expound, clarify or elaborate. This aspect is very important because it provides an
appropriate needs analysis of the topic chosen (i.e. identify the problem associated
with the topic, review the principles of law or circumstances that creates a problem
within the topic chosen, brief review of what other scholars have done about the
problem and the gap / vacuum which is left to be exploited). Usually to bring out the
problem clearly, a brief discussion of the relevant literature must be undertaken to
situate the research problem in the context of current debates and other researches in
the area chosen.

Note that some universities require a substantiate review of relevant literature to be

done to enhance the clarity with which the problem is stated. In such circumstance, a
new sub-heading titled “Literature Review” is included in this chapter to serve that
purpose.

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Where a review of the relevant literature is required, the student may be required to
include in that sub-heading the theoretical and conceptual explanations/clarifications
of topic. The purpose of this section is (i). to demonstrate that the student knows the
literature in the concerned field as they pertain to the specific area of research and
demonstrate that there is a gap in the literature that the long essay seeks to address and
thereby contribute to the field; (ii). Present the major schools of thought on the issue
the student is exploring. However, the section should not be an overview of all the
theories of the general topic of the student’s long essay. It is an opportunity to state
how either the puzzle identified and/or research question has not been adequately
addressed by the existing theories/literature in the field or that the research has never
been done. If the research is breaking new grounds, the student must still present the
various ways the other researches in the field address the puzzle/problem in order to
demonstrate that there is a gap; (iii). Present the differing hypotheses that have
already been written by others exploring the same problem and try to weave in your
point of view. In other words, acknowledge what others have said; demonstrate what
is lacking in their analysis and/or what you are building upon, and indicate how you
agree or disagree with their work. Thus, this section is not about merely summarizing
each article or book on the topic. For convenience and easy understanding of the
contents of this sub-heading, it is usually organised and discussed in headings and
sub-divisions.

2.3 Research Questions

Research questions are the specific questions which the researcher hopes to attempt to
answer as the main focus of his research work. The identified problems must result in
some questions which the student would ask and then attempt to answer in order to
solve the problem identified. This way therefore, the research questions are derived
from the statement of the problem.

Research questions must be able to lead the student to some tangible and attainable
results which he /she must have envisaged in order to solve the problem already
identified (this way research questions are similar to what is known in empirical
research as ‘hypothesis).

Research questions eventually constitute the benchmark / criteria which would be

used to measure the success of the long essay. It is therefore the backbone of the long

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essay and every discussion in the body of the work must be designed towards
answering the questions posed, one way or the other.

2.4 Objectives of the Study

The student must state the objectives of the long essay; that is, objectives of the topic
chosen. What does the student intend to achieve in the topic chosen? Most of the
times the objectives coincides with the research questions and are therefore merely a
reconstruction of the research questions in form of objectives.

2.5 Research Methodology

This would include research methods intended to be used by the candidate to conduct
his research. The methodology must be clearly stated (i.e. use of questionnaires, use
of primary and secondary sources, significant reliance on internet sources, e.t.c.). If
the research is purely doctrinal, the student should also state whether he/she intends to
do a comparative analysis or a case study and how he/she will elicit the required data/
information and treat it in the course of the work. If the research is socio-legal in
nature, the student must indicate in detail the empirical tools which he/she intends to
use to gather data and analyse it. The student must generally exhibit in this section a
clear understanding of his/her research design, techniques and strategy.

Most legal research is library-based – i.e. relying on information that already exists in
some form, such as journal articles, case reports, legislation, treaties, historical
records e.t.c. some studies, however, might require the use of fieldwork or empirical
data – that is, gathering information through direct interaction with people and
processes, such as interviews, questionnaires or court observations. Assuming the
student plans to rely on library-based research, he/she needs to explain where his/her
sources are located and how they will be accessed, for example via the library,
internet e.t.c. if the student’s work involves comparative or international study, he/she
needs to explain how he/she will obtain the relevant international materials and
whether or not this will involve travel. If the student plans to undertake fieldwork or
collect empirical data, then he/she needs to provide details about why this is an
appropriate research method, the persons he plan to interview, how many interviews
will be carried out etc.

2.6 Significance of the Study

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The topic chosen for research by the candidate must not have been over-flogged. This
is the most potent way to establish the relevance of the research having regards to
scholarship which has already been conducted on the topic. How important would the
research conducted be to the field of study? To demonstrate relevance, there are two
things which the student must establish: (i). demonstrate how the research ‘fills a gap’
in existing research (that is, show that it has not been done before); (ii). Explain why
the research is important – it is not enough to say that this has not been studied
previously, the student needs to explain why it should be studied, and that is why it is
important.

The statement of the problem together with the research question already identified by
the candidate would constitute the benchmark for measuring the relevance of the long
essay. What would be the benefit derivable from the research in terms of furtherance
of scholarship in the field of study or improvement / development of a specific area of
law in the country or society at large?

The candidate may also state the purpose which he hopes to achieve by his research.
The researcher may have in mind to use his research as a forerunner for correction of
certain legal deficiencies in society, amendment of certain laws, correction of certain
misconceptions about the law, etc.

2.7 Scope of the Study

This is the scope of the study. The candidate must describe the limit of the proposed
research. How deep would research of the topic be? What are the areas which by
implication may be covered by the topic but would not be considered in the long
essay study? Also delimitation may involve geographic delimitation or conceptual
delimitation. Is the work a case study? Is it limited to a particular country? e.t.c. these
and other things have to be determined to establish the scope or delimitation of the
study.

2.8 Limitation of the Study

What are the negative assumptions under which the candidate would conduct the
research? (i.e. lack of access to primary sources or even secondary sources, problems
which the candidate reasonably foresee to encounter in the course of the research,
such as lack of resources whether money or man power e.t.c.).

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 (3) Main Body

Apart from the ‘Introduction’, the main body of the long essay is comprised of chapters two
to four which is titled in such a way as to eventually treat the research problem and answer
the research questions raised in chapter one.

(4) Conclusion

Chapter five of the long essay consists of the conclusion, which is the concluding part of the
project. It must be entitled “Conclusions”. The general outline of this chapter must look like
chapter five of the example given above, i.e. summary of findings, recommendations, and
conclusion.

(5) General Comments

(a) The long essay, dissertation/thesis must be written in clear and simple English
language. The arguments and findings must be expressed concisely and the
style must be coherent. It must be computer typed and saved in Microsoft
Word document format and double line spacing. The typing paper must be A4
size and a margin of not less than 40mm should be allowed on the left hand
side of the page to allow for binding, and at least 20mm on the right. The
eventual binding must be black cover. On the spine of the long essay, the
degree title, the year of completion of the long essay and the initials and
surname of the student must be imprinted (i.e. LL.B, 2010 G.T. Okonkwo).
The information, together with the title of the long essay must also be placed
on the front cover.

(b) The long essays must contain a bibliography at the end, which is an
alphabetical arrangement of all the sources used in writing the work. The
bibliography is usually different from the footnotes, which must still appear at
the foot of each page depending on the number of references made in that
page. The bibliography differs from the footnotes only in one respect, that is,
that the surname of the author referred to in the reference comes first before
the initials. The long essay may also contain at the end, the glossary / index
and an appendix as the case may be where there is need for it.

(c) The long essay/dissertation/thesis should not just be descriptive. A thesis is not
a narrative, a review, an outline or a re-statement of facts or a collection of
other writers’ opinions. A long essay, dissertation/thesis involves original

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 research and must present a new approach or a critical analysis with fresh
ideas.

(d) The student should not plagiarism. Stiff penalty will be applied if it is
discovered that the dissertation/thesis is wholly or in part another person’s
work or that the student had copied another work without properly
acknowledging the source.

(e) The content of under-graduate long essay in the faculty shall be divided into
five chapters only. The length of LL.B long essay shall not exceed fifty
thousand words (50, 000) of both text and footnotes.

(6) Citation and Referencing Citation and Referencing

(a) students should use footnotes, i.e. notes printed at the foot of the page
where reference to published works relied on in the long essay are cited.
Endnotes are not acceptable. The footnotes should not be inserted manually.
Please use the automatic footnoting system (i.e. use the INSERT button in MS
Word to insert the footnotes continuously or the short cut of Ctrl + alt F).

(b) Footnotes should be numbered consecutively with Arabic numerals

and should be as concise as possible. Each chapter of the work must begin
with a fresh footnote numbering

(c) Find below the acceptable ECU legal citation guide/style:

Book with one author

Name of author, title (in italics), place of publication, publisher, date of publication
(publication details in parentheses). Whenever you cite a page number, use the following
abbreviations: p.312 or, if you are referring to multiple pages, pp. 345-346. For example

Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern
Fiction (New Haven: Yale University Press, 1984), p.212

Book with two or three authors

Name of authors, title (in italics), place of publication, publisher, date of publication
(publication details in parentheses), page number(s) of particular reference(s), if necessary:
Example

Roger Fisher, William Ury, Getting to Yes: Negotiating Agreement without Giving In
(London: Penguin Books, 1983)

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Book with more than three authors

First author followed by the phrase et al., title (in italics), place of publication, publisher, date
of publication (publication details in parentheses), page number(s) of particular reference(s),
if necessary:

W.A. Wilson, et al., Gloag and Henderson: The Law of Scotland (tenth edition, Edinburgh:
W. Green, 1995)

Edited book

Name of editor(s), followed by ‘ed(s)’, title (in italics), place of publication, publisher, date
of publication (publication details in parentheses), page number(s) of particular reference(s),
if necessary:

Sally M. Lloyd-Bostock & Brian Clifford, (eds.), Evaluating Witness Evidence (Chichester:
Chichester Press, 1983).

Article / Chapter in Edited book

Name of author(s), title of article or chapter in single quotation marks, followed by ‘in’
editor(s) full name(s), ‘ed(s)’ title of book (in italics), place of publication, publisher, date of
publication (publication details in parentheses), page number(s) of particular reference(s), if
necessary:

Peter Goodrich, ‘Modalities of Annunciation: An Introduction to Courtroom Speech’, in Joel

Jakson (ed.), Law and Semiotics, 2 volumes (New York: Plenum Press, 1988), vol.2, pp.143-
167

Articles in Journal

Name of author(s), title of article in single quotation marks, title of journal in italics, volume
number, part number, year of publication in brackets, first and last page numbers of the
article cited; page number(s) of particular reference(s), if necessary:

D.L. Carey, ‘Real Property: A Romanist System’, The Juridical Review, no.1, (1995), pp. 70-
82, p.76

Articles in newspapers

Name of author, title of article in single quotation marks, title of newspaper, date of issue

(day, date & month, year) and page number(s):

Barbara Latin, ‘On Course to Practical Skills’, The Independent, Friday 5 August 1994, p.28

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Unpublished dissertations and theses

Name of author, title of dissertation/thesis in single quotation marks, followed by degree if

known, university and date in brackets:

Abu Hareira, ‘A Holistic Approach to the Analysis and Examination of Evidence in Anglo-
American Judicial Trials’, (unpublished Master’s thesis, University of Warwick, 1984)

Internet URL Source

URL stands for ‘Uniform Resource Locator’. It is the ‘address’ of a Web resource, which
could take the form of text, sound, graphics, video, animation, or any combination of these.
In Internet terms, a protocol is the agreed method of communication used by computers to
transfer information. The citation path for an internet source is as follows, Cite
<protocol>://<host.domain>/<directory>/<file.name>, Example:

Smith, X. & Jones, Y. (1999, August 2). Publication title [WWW document]. URL
http://www.xxx.gcal.ac.uk/~law/XXXX.html (visited 2001, September 22)

The first date (‘2001, August 2’) records the version date of the document you saw. The
‘visited’ date (‘1999, September 22’) records when that URL was valid for readers wishing to
follow it up. Here is an actual example:

Maharg, Paul. (1996, January 31). ‘Contracts: An Introduction to the Skills of Legal Writing
and Analysis’ [WWW document] URL http://elj.strath.ac.uk/jilt/cal/1maharg/default.htm
(visited 1998, September 15)

Citing cases

Names of cases should be in italics wherever they appear. Usually citation should follow the
form prescribed by the editors of the relevant law report. However, the practice is that square
brackets are used for citing the year of the law report while ordinary brackets are used for the
part or volume of the report. Example

The Pamia [1943] 1 All ER 269.

Schaffenius v. Goldberg [1916] 1 KB 284.

Chukwu v. Ndelim [1987] 1 NWLR (pt.13) 6, at 10

Note: students must be consistent in their use of referencing signets (i.e. ibid, id, Op. cit.,
infra, supra, loc. cit., sic) wherever these are used they should be in italics.

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