LEGAL RESEARCH AND LAW REFORM

Author(s): P. M. Bakshi
Source: Journal of the Indian Law Institute , APRIL-SEPTEMBER 1982, Vol. 24, No. 2/3,
SILVER JUBILEE NUMBER (APRIL-SEPTEMBER 1982), pp. 391-415
Published by: Indian Law Institute

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 LEGAL RESEARCH AND LAW REFORM

P.M. Bakshi*

Introductory

THE SIGNIFICANCE of legal research in the process of law reform is, by

now, well known to all those who have to do something with law reform.
The process of law reform, however, does not consist, in its entirety, of
research only- a misconception that is often found to exist. But a firm
foundation of legal research is a desideratum for most, if not all, projects
of law reform. The nature and quality of research and the materials to be
explored in the course of research for the purpose will, of course, very
according to several factors. These factors include, to give a few instances,
the status of the institution, the nature of the subject matter, the time
allowed for the project and several other variables. But in the context of
the legal research requisite for projects of law reform there are certain
features common to almost all such projects.
Before going into these factors, it may be worthwhile to mention that
the function of legal research in law reform is somewhat different from its
function in general. Research for the purpose of writing a book or
preparing a thesis or an article has no other objective except an exploration
in depth of the position on the particular topic of research. Its principal
end is the arriving at of certain conclusions on the relevant aspects of the
subject. Proposals for reform are, no doubt, occasionally found at the
end of the study paper, but they would not be the sole objective of the
research. One can even describe these proposals as a bye-product of the
research undertaken. In contrast, when research is undertaken as a
part of the process of law reform, it is undertaken with a definite end,
namely, making suggestions for improvements in the law on concrete and
easily identifiable matters and the formulation of those proposals in
precise terms. This approach is to be kept in mind throughout the process;
at no stage it is to be lost sight of; and at every stage it is the major
governing factor. Because of this consideration, certain limitations may
creep in as to the quantum of research that can be undertaken; and again,
because of this consideration, the research may, from the very beginning,
have to be moulded in a particular direction.
Coming now to the tools of law reform, research is one essential tool
for any project of law reform. The major portion of legal research for
the purpose of law reform is of three categories- analytical, historical and
comparative. The first is concerned with what the law is; the second with
its history and evolution; and the third with the comparable position in

♦Formerly Member-Secretary, Law Commission of India.

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392 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

other countries. The amount of time and energy to be divided b

the three depends on the nature of the subject and the status an
of available official, academic and other material. Besides these,
a few other categories of research which will be mentioned presen
Research on any topic can, in point of quantity, be limitless,
researcher knows, or at least comes to realise sooner or later- som
to his cost. Money, time and manpower set the limits. It wo
wise course to map out the total area that is covered by the s
hand, to divide it into segments and to distribute the resources
the various segments so that each aspect of the subject receives,
possible, adequate attention and no part thereof receives disprop
attention.

The process of research

Published materials on legal writing and research, while presenting

much excellent guidance on the sources of law, do not adequately recognise
the importance of the underlying process of research analysis. Some
time ago it was observed : "We know too little about the styles and
structures of legal research strategies."1
In an era of information explosion, one of the most serious problems
for doing research is to find enough time to search and to digest volumin-
ous materials. But often the reverse is the case, and the researcher faces
the more frustrating problem of lack of sufficient information or research
materials concerning legal developments in certain countries or on certain
topics.
To a certain extent, the methods to be adopted for research depend on
the body under whose auspices it is to be conducted. If the agency which
examines a proposal for law reform is a purely departmental committee
appointed ad hoc , its approach would be different. It can meet frequently,
but its outlook might be coloured by the departmental point of view, and
this will have a reflection on the methods also. On the other hand, if the
agency charged with suggesting the reform of the law on a particular
subject is not a purely departmental committee, its outlook will be wider,
and the methods to be adopted by it will also be broadbased. Again, the
methods to be adopted in a particular project will have to vary according
to the time allowed for completion of the project.
It must also be noted that the methods of law reform to be adopted
will differ according to the subject. fctIf we dig in the garden, we use a
spade. If we search for oil, we employ a rock-drill. In other words, the
choice of tools depends on the depth to which we intend to probe."2

1. Bruce G. Buchanan and Thomas E. Headrick, "Some Speculation about Artifi-

cial Intelligence and Legal Reasoning*', 23 Stan. L. Rev. 40 at 47 (1970-1971).
2. Georg Schwarzenberger, "Reflections on the Law of International Institutions ,
13 Current Legal Prob . 276 at 289 (1960).

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1982] LEGAL RESEARCH AND REFORM 393

Types of research needed for law reform

The types of research needed for law refor

enumerated at this stage. Broadly speaking, alm
processes would be found to be necessary for eac
(1) analytical , i.e., finding out the existing law; (
out the previous law in order to understand the
law and the course of its evolution; (3) comp
out what the law is in other countries, and cons
drawn upon, with or without modification; (4) s
of statistics to show the working of the existing
finding out the defects in the existing law and
criticism has to be based upon (/) public opinion
ous committees or other bodies; (iii) practica
decisions; (v) academic literature; (vi) changed
developments; and (vii) need for harmonization
the meantime.
Often, these processes have to be intermingled. Thus, a study of the
law of a foreign country [ (3) above] may not be enough, and history [ (2)
above] of the foreign law may have to be studied. Similarly, when one
studies statistics [ (4) above] in one's own country, one may also like to
study the comparable statistics about other countries [ (3) above], and so
on.

Each of these processes is arduous and time consuming. For

the process of finding out the existing law, i.e., analytical resea
paratively easy where the law is codified and recent, but not s
law itself has to be collected from a number of sources, or w
interpretations of the law have to be studied, analysed an
Similarly, the older the law is, the more difficult becomes th
process. This is because it is not enough to study the immedia
of the existing provisions, even where the law is codified. On
to the earlier history; it often happens that a controversy whic
on the existing provision owes its origin to a change of langua
the existing provision in the older one, and so on.
Again, study of the laws of other countries- a very interest
by itself - can become a task of endless magnitude. There is a w
the common law systems, the civil law systems as prevailing
tinent, the civil law systems elsewhere,3 and so on. Within th
of the Commonwealth itself, there is a mass of material, profuse i
and rich in quality.
Further, analytical and historical research has to be fol
weighing and balancing of the rival points of view - a process w
visible manifestation and yet involves great time. Law reform i
not the work "of a few spare afternoons". The final result may

3. E. g.t Lousiana (U.S.A.), some countries in Latin America, and Que

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394 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 24 : 2 & 3

only an infinitesimal portion of the labour devoted, and may, even th

appear to be doubtful in quality.
The pressure of time is often felt. A law reform committee, when
is pressed with time and expected to show a certain quantum of resu
cannot work in a systematic way. It is not a divine machine, produci
with mathematical regularity reports immaculate in design and execut
If time given is not adequate, the committee has to make a somew
eclectic choice, and this might perpetuate ambiguities in expression as
as misconceptions about principles.4
Ascertainment of the law, deciding what the law ought to be
expressing that decision in precise language, are the three main stage
law reform. Difficulties arise at each stage. Thus, in a vast country l
India with numerous High Courts administering and interpreting the
of the country, the researches involved in what the law is are of a m
bigger magnitude than is often realised.

Analytical research

Legislative competence- "Analytical research" is a convenient phras

which may be used to describe the type of research that aims primari
an exploration of what is the existing law. Where the law to be reform
consists of statute law, this research would mainly mean locating
relevant statutes. At the central level, the relevant statutes would gene
consist of central legislation, read, of course, with the relevant case
However, very often, state legislation on the particular subject may
have to be consulted. This is particularly so when the law relates
topic included in the concurrent list in the seventh schedule to the Co
titution. A good researcher would, therefore, be expected to culti
reasonable familiarity with the scheme of distribution of legislative pow
between the centre and the states under the Constitution. In fact, a so
knowledge of the scheme of distribution is necessary in order to determ
even the preliminary question whether legislation on the subject und
consideration is within the legislative competence of the union, or whe
it belong exclusively to the states. It is needless to say that wher
project of law reform is undertaken at the instance of the centre by
Central Government agency or institution, there is no point in procee
with the project if the subject does not fall within the legislati
competence of the union, except in the hypothetical case where what
been requested from the law reform institution is a model bill for t
states,5 or in the rare case where the proposal for legislation is t
confined to union territories. Conversely, if the agency or institutio

4. Cf. Jacob S. Ziegel, "Uniformity of Legislation in Canada : The Conditi

Sales Experience", XXXIX Can. B. Rev. 165 at 185, 203 (1961).
5. India does not have an institution like Commissoners for Uniformity of
Legislation.

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 1982] LEGAL RESEARCH AND REFORM 395

concerned with the particular project is that of a

is no point in its proceeding further with the pr
scheme of distribution of legislative powers und
topic to which it relates is not within the compe
is not an aspect merely of theoretical interest ; n
that a particular subject commonly thought to b
of the centre is, on further examination, found
legislative competence of the states. One has to
respect, especially because of the manner in which legislation has
evolved in the course of the last two centuries in India. The rigid distri-
bution of legislative powers between the centre and the units did not
exist before the Government of India Act 1935. Although, for conveni-
ence, the "devolution" of business took place, the centre had unlimited
legislative power so far as the field of legislation went. There are several
central Acts on the Indian statute book of the pre-Constitution period,
whose subject-matter is no longer within the legislative competence of the
union, since the subject-matter does not fall either within the union list
or within the concurrent list in the seventh schedule. The subject is now
exclusively a state subject. One very apt example is the central Act
relating to easements. At present, there is in force a central Act on the
subject- Indian Easements Act 1882. Primarily, however, the Act relates
to land and rights over land, which (in the present scheme) is within the
exclusive legislative competence of the states. Similarly, there is a central
Act on the subject of dramatic performances- the Dramatic Performances
Act 1876- large portions whereof deal with matters that are now exclusi-
vely within the legislative competence of the states, such as public order
or entertainments. The two central Acts mentioned above cannot,
therefore, be revised by the centre except in relation to union territories.
In this respect, mention may also be made of the subject of "police".
Although the Police Act 1861- a central Act- is still in force (except in
those states where it has been replaced by provincial or state legislation),
most of the matters dealt with in the Act now fall within the legislative
entries in the Constitution relating to "police" or "public order".
In this context, it would be of interest to mention that the subject of
"administration of justice and constitution and organisation of all courts,
except the Supreme Court and the High Courts" was, until the insertion
of entry IIA on the subject6 in the concurrent list by a constitutional
amendment, a state subject. Incidentally, the expression "administration
of justice" has been judicially construed as wide enough to include the
power to try suits or proceedings of civil or criminal nature and the jurisdic-
tion of courts.7 Further, it is by reason of this entry that Parliament has
the concurrent power to set up special courts for the trial of offences of

6. Constitution (Forty-second) Amendment Act 1976.

7. State of Bomby v. Narottamdas , A.I,R. 1951 S.C. 69.

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396 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

a special class.8 Legislative competence to deal with the particula

is thus a matter of theoretical as well as practical importance.
Statutory and other sources - Having determined the ques
legislative competence, the researcher has to turn to the existin
law on the subject under consideration. In this context, he h
remember that except where the matter relates to a subject cov
the great Anglo-Indian codes, such as, civil and criminal procedu
substantive law of crimes, the law of evidence, the law of limitat
transfer of property and certain other matters dealing with right
certain branches of commercial law, and so on, the researcher mu
prepared to hunt out the relevant statutory law from a variety of
This presupposes on his part a knowledge of the framework of th
Indian statute book. With about a thousand cenral Acts now in
force, he would naturally search for a guide. However, such guides
scarce. The conscientious researcher will have to undertake his own
research. Only experience can lessen the chances of mistake. By way of
a very brief analysis of central legislation, it may be mentioned that such
legislation in India- when one bears in mind the entire gamut thereof- is
represented by a variety of measures. What is defined in the General
Clauses Act 1897 as a "Central Act"9 draws attention to enactments that
are titled as "Acts". But, besides "Central Acts" properly so called, there
is central legislation not described as "Acts" but still forming part of
the statute book of the centre. Thus, for example, there are regulations.10
A point which is often overlooked is that there are also several British
statutes applicable to some parts of India.11 While some of these statutes
have been repealed12 after Independence, many of them are still in force.
A very interesting example of such a U.K. legislation is furnished by the
British statutes dealing with admiralty jurisdiction, as also by the British
statute concerned with extra-territorial jurisdiction. Then, it should also
be remembered that in some of the areas which were formerly French or
Portuguese possessions, there might be in force laws of the period before
those areas came to form part of India. If relevant, they will naturally
have to be studied. The same comment applies to the legislation enacted
in some of the princely states.
Availability - Ascertainment of the statutory framework is thus an
important part of the preliminaries of legal research undertaken for the
purpose of law reform. Another preliminary that has to be undergone
by the researcher in this connection relates to the location and availability
of the needed statutory material. Let the point be made clear. The first

8. In re The Special Courts Bill, 1978, A.I.R. 1979 S.C. 478.

9. S. 3(7).
10. Cf. s. 3(50), General Clauses Act 1897.
11. See Law Commission of India, British Statutes Applicable to India (Fifth report)
(1957).
12. British Statutes (Application to India) Act 1960.

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 1982] LEGAL RESEARCH AND REFORM 397

step is identification of the relevant central Act

getting possession of it. In identifying the stat
may be available from the official index to cent
unofficial manuals of statute law published by
very often these are not up to date and it will b
supplement them by going through the official
published for the period subsequent to the public
private manuals, for identifying the relevant m
the principal statutes should also be consulted b
since very often they take care to print, usually
allied or cognate to the principal Act dealt with
course, the most satisfactory checks that inspire
have to be supplied by the researcher himself
come to acquire by experience and study.
The actual availability of statutory materi
identified) is also an important practical matter
present much difficulty in capital cities, but co
mofussil. The aspect that creates considerable an
up to date copies of state Acts. Common expe
Herculean task to secure up to date copies of stat
Law reform projects generally are confined to p
to the progeny- statutory rules and orders. But
necessary to consult those rules and orders to understand the actual
working of the parent Act. The difficulties of getting hold of these rules
and orders is well known and is not peculiar to India.
Custom- The topic of statute law naturally brings in the connected
one of judicial decisions on the subject-matter of the statute. This will be
dealt with a little later in this article. Before doing so, however, it will
be worthwhile to draw attention to another source of law - custom. Both
in Hindu law and Muslim law, the overriding importance of custom has
been well recognised for about a century. In Hindu law, customs which
are at variance with the Shastric law can still override the specific texts (in
the absence of a statutory provision), if they are valid customs. The
Hindu Marriage Act 1955, for example, expressly preserves the validity of
custom to a limited extent.13
On matters of personal law (these are the matters that very often come
up for law reform) the legal researcher would be expected, as a preliminary,
to undertake at least two enquiries in this regard, namely, (/) the extent to
which a particular statute on the subject has preserved the customary law,
and (ii) the actual content of the customary law relevant to the topic
under consideration, assuming that its operation has been preserved. It
may be mentioned in this connection that on such an important matter
as the degrees of prohibited relationship of marriage as prescribed by

13. See infra at 398.

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398 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

statute, at least two measures recognise the usage or custom gove

parties to the marriage. The Hindu Marriage Act allows such
to override the statutory prohibition, if the custom is one which
each of the parties to the marriage. The Special Marriage Act (su
certain conditions) now recognises the validity of the custom gov
least one of the parties which permits a marriage between them
they stand within the prohibited degrees of relationship as given in t
[The Special Marriage Act speaks of "at least one party", for the
that in the scheme of the Act, the parties may not necessarily be
to the same religion, caste, sect or community]. A number of
tions15 on the subject of customary law are available in India an
many of them are slightly out of date, they are useful as constit
starting point for research, though not necessarily the point of term
for research in customary law.
Judicial gloss on statutes - The question of case law on centra
much more important as it constitutes a major part of the task
research, whether the research be reform-oriented or not. At the
caution must be sounded. The general tendency in this respect i
to a standard commentary on the central Act under consideratio
take the case law from that source. This might, however, often
hazardous task. Without making any comments on the level of e
veness and reliability of commentaries, it is enough to state that
be better if the researcher, as far as possible, undertakes his own
tion of the case law. Standard commentaries of distinguished or well
known authors can be used as a starting point, but the research cannot
be confined to them. At some stage, the researcher will necessarily have
to go to the digest for tracing cases that might have been missed in the
commentaries. Ultimately, he will, of course, have to reach the law
reports themselves, whether the case was traced from a commentary or
from the digest. Even a good commentary might not highlight a particular
point under exploration.
Moreover, judgments of High Courts occasionally contain suggestions
for, or hints at, reform of the law, and these suggestions or hints constitute
a very valuable material for the researcher. He would certainly like to use
this material when, later in the course of his work, he is going to make
concrete suggestions for law reform. At present, unfortunately, the
headnotes to law reports in India, and the digests of case law, do not
contain a prominent and specific heading "law reform" that will catch the

14. S. 5(/V), Hindu Marriage Act 1955; s. 4 (¿/), proviso, read with the explanation
to that section and the proviso to that explanation, Special Marriage Act 1954.
15. E.g., P.V. Kane, Hindu Customs and Modern Law [Sir Lallubhai A. Shah
Lectures, 1944], (1950); K.M. Kapadia, Marriage and Family in India (1966); Sripati
Roy, Customs and Customary Law in British India [Tagore law Lectures, 1908] (1911); S.
Venkataraman, Influence of Common Law and Equity on the Personal Law of the
Hindus (1957).

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 1982] LEGAL RESEARCH AND REFORM 399

eye of the researcher. He must, therefore, perus

order to find out if suggestions for reform have be
It is well known that in more recent times, with
the part of the judges of the need for reform of
the judgments suggestions for reform of the la
before. It may not be out of place to mention he
that one of the comparatively recent reports of
India deals with a subject which was referred to
Supreme Court, in one of its judgments,16 sugge
subject of recognition of foreign divorces was in ne
A question of detail in connection with the ex
well worth mentioning. Every researcher know
his researches to case law up to a particular d
ments on so many issues are pouring in with su
researcher must take note of them, if he is to p
will find it useful to keep himself abreast of them
is going on. He will, therefore, have to be on th
may be that each month or each week when the
of reported decisions comes to his hands, he may
very detailed summary of the cases reported in
subject at hand. If so, one alternative that he ca
a brief note, in one or two sentences, of the poi
is a device which can be usefully adopted in rega
also, containing articles relevant to the subject at
How is a judgment to be approached? It ha
"Every case lays down a rule, the rule of th
unicentric view implicit in the phrase "the rule
of utility in a thorough analysis of judgment. T
course, simple :

[T]here is one thing that... [a judicial opinion] m

state plainly the rule upon which the decisi
required, in theory, because the Court's funct
law; and in practice, because the Bar is entitle
what rule they can follow in advising clients and i

But every researcher knows that it is not alw

"rule of the case". The eight elements of the cas
thus stated : (/) Heading; («) procedural hist
(iv) assumed law ; (v) question presented ; de

16. Satya v. Teja Singh , A.I.R. 1975 S.C. 105.

17. Re
18. K.N. Llewellyn, lhe iSramoie isusn oo
19. John Henry Wig m ore, A Treatise on tne Angio- American system oj nvwence m
Trials' at Common Law , Vol. 1 at 253 (1940) (emphasis omitted).

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400 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

(vii) rules; and (viii) comment.20 The researcher will have to f

with great care numbers (v) and (vi).
Appellate opinion analysis is comprised of two processes : (a) D
tion of each opinion, and (b) assessment of each opinion. "Desc
of an opinion means summarizing its content, especially its reason
an ordered fashion. This is a difficult task. Often, indeed, the "d
tion" component of case analysis is thought to comprise the ent
case briefing. "Assessment", however, also is essential to a thoro
analysis. Assessment is comprised of a critique of the reasoni
determination of the significance of the case in relation to other
sources of law.21
The problems concerned with a study of case law are thus formidable.
There is, however, one advantage in research undertaken with a specific
object. The lawyer who goes into his library to read cases knows exactly
what he is looking for. So is the researcher working for law reform. He
has a legal problem to handle, and he reads each case to see what its
bearing is on his own particular question. He is not expected to analyse
in a vacuum. In his mind is a problem, a question to be answered, a
compelling curiosity.
Incidentally, obiter dicta in a judgment are not always to be disregarded
where law reform is the objective. Though having no binding force, these
are useful as indicating the judicial trend, or an uncertainty in the law or
the need for clarification of the law.
Conflict of judicial decisions - While on the subject of research in case
law, it may be useful to mention that a peculiar problem that the researcher
in India has to face is that of conflict of decisions among the High Courts.
With the legal and judicial system that we have, such conflicts are
inevitable. Until a point is settled by the Supreme Court or dealt with by
suitable clarificatory legislation, conflict may arise or survive and the
researcher, when working on case law, must address himself to this aspect
also. Foreign scholars Interested in law reform are often unaware of the
nature and magnitude of this part of the process of research in India. The
volume and magnitude of this part of the work naturally differ from
statute to statute, but broadly speaking, there is hardly any important
central Act dealing with the "lawyer's law" on which the researcher will
find a complete uniformity of judicial decisions. He should keep an eye
on the possibility of conflict and in the majority of cases, he will discover
that there is some conflict, obscurity or uncertainty.
Conflict of views may be due to defects in drafting, but it could also be
due to the essential nature of language. Language, as every student of
legislation and statute law knows, is at best an ambiguous instrument for
the communication of ideas. For example, scholars are, by now, well

20. Peter W. Gross, "On Law School Training in Analytic Skill**, 25 J. Legal Educ.
261 at 274 (1972-1973).
21. Id. at 261, 273.

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1982] LEGAL RESEARCH AND REFORM 401

aware of the ambiguity inherent in the simple

How far this expression includes an unborn hum
subject of considerable debate in recent times. D
there used to be a controversy as to the question
includes corporations, particularly in the contex
still earlier period, there was a controversy even
the expression "person" would include a woman. E
"person" is derived from persona which mean
non-legal language often travels far beyond the e
Conflict of decisions on a particular point b
occasionally due to different views as to matters
High Courts. Whatever be the source of the con
have to devote serious attention to it and (where
clarification of the law.
Herein comes one of the romances of law reform
that there is a conflict of decisions on a particu
question before the researcher engaged in law ref
should be made regarding the direction in which t
At this stage, the researcher will have to make
more conflicting views of the High Courts and s
times, he might have to evolve a compromise
even have to suggest an entirely new path, not ta
decisions that have created the conflict. At this s
arise a question of values, and no amount of legal
furnish the answer. The answer must come from
that will supply the needed insight. Of course, t
be entrusted exclusively to one person- which is
reform institutions are multimember institutions.
Occasionally, when scrutinising a statutory
the need for reform, the researcher might have
on the provision and consider whether, ap
existing provisions need reform. Judicial decisio
uniform view on a statutory provision, so that t
such. But justice may require a change in the st
is for the reason that the statutory language may
courts would not have considered it proper to de
they regarded it as unjust. No doubt, accordin
lawmaker may formulate a general rule, withou
cases which remain outside the purview of th
though the text is apparently absolute, it wo
derogation from it, by applying the maxim : Ce
lex."22

22. I.M. Planiol, Traite Elémentaire de Droit Civil, pt.

Jnst. transi. 1959), cited by J. Michael Veron, "Civil
paternity- Prohibited grounds of Impotence Interprete
.47 Tul L. Rev. 205 at 210 (1972-1973).

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402 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 ; 2 & 3

However, courts do not always adopt such an approach for

which need not be gone into in the present study. A review of t
would then have to address itself to the question of changes
in the interests af justice. As the late Justice Felix Frankfurter w

Legislation is essentially empiric.... To recognize marked differe

that exist in fact is living law; to disregard practical differen
and concentrate on some abstract identities is lifeless logic.23

(2) Historical research

Analytical research deals with the present. But the past m

have to be explored. On the Archives Building in Washington
is a famous inscription (taken from Shakespeare) which reads : "A
past is prologue." These are pregnant words and not mere rhetor
past often explains the present, most vividly.
The next type of research required in law reform, then, is his
By historical research in this context is not meant a discussion o
history of each rule of law or of each statutory provision for th
mere intellectual delight or for mere record. Like all other
research required for the purpose of law reform (or, for that ma
the purpose of attaining any other concrete object), historical r
is useful in law where the present statutory provision or rule of
raised meaningful queries and it becomes necessary to explore the
stances in which the present position came about. Not unof
exploration of the historical material gives a clue to the reasons
particular provision was framed in the form in which it now ap
This often removes certain doubts or even supplies to the resear
reasons that justify the present provision - reasons which may n
wise be apparent. Obviously, where such a fruit is yielded by hi
research, it has its own utility. It prevents one from making a su
for change in the law which one was tempted to make (before k
the past), but which now appears to be unnecessary. Secondly, h
research may often reveal that alterations in the law on particu
which are now tentatively under consideration had already been th
in the past also, in the earlier attempts at reform of the law, but
rejected for sound and valid reasons. One interesting exa
such an alteration in the law, often suggested but never fo
is the suggestion relating to the composition of the distric
in its civil appellate capacity. The desire to expedite the
process of litigation and to reduce the number of appeals in the
courts has prompted many reformers in India in the past to
that the district court, when hearing civil appeals, should be
member court, so that the collective wisdom, knowledge and ex

23. Motty v. Doud% 354 U.S. 457 at 472 (1957) (dissenting opinion).

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 1982] LEGAL RESEARCH AND REFORM 403

of three senior members of the judiciary is brought to

appeal. The proposal may have been inspired on a study of the
position prevailing in France and certain other countries where there is a
system of "collegiate" courts. Of course, the ultimate objective under-
lying such a proposal has been to prohibit any further appeal to the High
Court from the decision of a three-member bench so constituted. The
proposal has been mooted again and again ever since the twenties of the
present century, but has always been rejected. The first high powered
body to reject it was the Civil Justice Committee, popularly known as
the Rankin Committee. The point is mentioned here only to show the
usefulness of historical research.
Thirdly, historical research would often show that a particular existing
provision, fully justifiable at the time when it was introduced, is no longer
so justifiable because the reasons that justified the original inclusion of
that provision are no longer valid. Historical research reveals the reasons,
which might otherwise remain obscure. Finally, on a more general
level, when the history of a particular idea which has been given a
concrete shape in the law is studied in depth, it shows the gradual
evolution of the law on certain lines, thus showing the general trend of
change. It is true that some jurists fight shy of history. Jeremy Bentham,
we are told, had scant respect for history and contributed little to an
understanding of legal and social change in a continuum.24 But it is now
well recognised that in many cases there is a certain logic in the way in
which the law evolves, even though, in some other cases, one may, no
doubt, find that the law had in the past developed rather on haphazard
lines.
Of course, when one speaks of historical research, one is not confined
to pure law. Even though the material directly under study may be
legal, that is to say, the source to be consulted may be a traditional
legal source, the factual material that comes to light and the knowledge
of ideas gathered from such a source, may often have an interest that
transcends the exclusively legal field. In fact, social and legal factors
cannot be always reduced to water-tight compartments. Any adequate
appraisal of the precise nature and rate of change in a particular
country must also pay special attention to the effect of relevant
physical, demographic, technological and ideological variables. Not-
withstanding Bentham's view that "a science of law and legislation could
be created which was governed by laws as invariable as those which
governed the physical world,"25 one discovers after some practical experi-
ence that to adhere strictly to such an approach would not be a satis-
factory course of action. As an eminent constitutional lawyer says :

The serviceability of history to make the present more understan-

dable has been remarked upon by writers from Aristotle to the

24. Sir William Holdsworth, A History of English Law, Vol. XIII at 125 (1966 reprint).
25. Id . at 124.

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4Ô4 JOURNAL ÔF THE tNĎIAN LAW INSTITUTE [Vol. 24 : 2 & 3

late Samuel Butler, famed author of Erewhon and The Way of All
Flesh ; and the idea is particularly pertinent to legal ideas and
institutions.26

What, then, are the sources from which historical material may be
drawn? Here the legal researcher sometimes feels a handicap. Notwith-
standing the availability of general books on Indian legal history
and Indian constitutional history, he will find that when he sits down to
tackle a particular subject assigned to him in a project of law reform,
the historical material is not easily traceable. At least, it is not so easily
traceable as judicial decisions. So far as pure statute law goes, some of
the commentaries, no doubt, supply the reader with the text of the
corresponding provisions in earlier statutes. But, this does not always
fully satisfy the curiosity of the researcher, and may not, in every case,
yield sufficient light as to why a certain provision was phrased in a certain
manner in the corresponding earlier statute« For this purpose, he will
have to consult the relevant legislative debates. Fortunately, so far as
central Acts go, these are excellently preserved in the national archives or
state archives in regard to the older Acts. If the researcher finds it
necessary (as he often may) to know the contemporaneous judicial
understanding or exposition of the earlier provision, he will certainly
like to go to the sources that contain such exposition. Experience has
shown that one of the best sources to be consulted for this purpose are
the earlier commentaries on the particular statute. These might often
have to be hunted out from the "record rooms" of law and other libraries.
A visit to second-hand book shops, or even correspondence with dealers
who deal with second-hand law books, is also worthwhile.
in modern times, emphasis has been placed on the sociological aspects
of the law, and the social slant given to legal research is a result of such
approach. Here the researcher may find that he would have to concern
himself with social history as well. It would be proper to mention in this
context that on many topics, material available in the literature of the
social sciences is abundant in quantity and rich in quality, and such
material might well be consulted for understanding the contemporaneous
social thinking. To mention one or two examples, a periodical which was
called ''Bengal, Past and Present" (which is no longer being published)
used to contain in its issues of the nineteenth century and early twentieth
century, very valuable social material throwing light on socio-legal
problems of these times. Some of the leading Indian law journals, parti-
cularly those published from the presidency towns, also used to offer
comments on legal and socio-legal matters and many of their earlier
volumes are a treat to read. Of course, the study of social history is now
being cultivated much more intensively than before. In particular, after

26. Eward S. Corwin, The Constitution and What It Means Today , preface at v (12th
ed. 1958).

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1982] LEGAL RESEARCH AND REFORM 405

the introduction of sociology as a subject for study in

the establishment of various institutes encouraging te
research in social sciences, the position regarding av
of material relating to modern social currents is much better. The
difficulty now is not of too scanty material, but of too much material in
the social sciences. At the same time, there are fairly useful bibliographi-
cal aids in this area, at both national and international levels. īn particular,
indices to periodicals in the humanities and social sciences are easily
available in general libraries. Time permitting, these should be consulted
by the diligent researcher.

(3) Comparative research

The next type of research that can be conveniently discussed is compa-

rative research. Like all other types of research that are utilised in a
project on law reform, comparative research, when so utilised, is also of
the applied category. Scholars have expressed different views as to the
definition and scope of comparative law. Professor H. C. Gutteridge
affirms : " 'Comparative law' denotes a method of study and research and
not a distinct branch or department of the law."27 For describing this
method of study where employed to attain an immediate practical end, one
can conveniently use the expression "applied comparative law" - an expres-
sion that was long ago used by an eminent criminologist in his study of
habitual criminals.2* In recent times, in law reform projects, study of
comparative law (in the sense of a study of the comparable position in
other countries on particular topics forming the subject-matter of legal
reform) has increased and received a great impetus. Legislatures, it
has been said, imitate each other and law reform bodies, it may be said,
try to learn from each other's experience. Sometime ago, the comparative
method found not more than verbal acceptance among the majority of
jurists who continued to pay lip-service to it as a fine jurisprudential
method, but themselves rarely adopted it. This does appear to be no
longer true of jurists, nor is it true of other persons belonging to the
discipline of law. In fact, the comparative method may not be new as we
think it to be. Aristotle's Constitutions can, with substantial accuracy, be
called comparative jurisprudence.
The practical problem that faces the researcher engaged in law reform
when he pursues this method is, what countries to choose for comparative
study, what books and other materials to consult and how much of the
material collected to be used for the purpose of the project report. As
regards the countries to be chosen, until very recently, the tendency was
to turn only to the English law or, at the most, to some Commonwealth
jurisdictions, such as Australia, Canada and New Zealand. However, as
legal literacy advanced and the exchange of legal information between

27. Comparative Law, (1974 reprint).

28. Norval Morris, The Habitual Criminal 227 (1976 reprint).

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406 JOURNAL OF THE INDÎAN LAW INSTITUTE [Vol. 24 : 2 & 3

various countries gained in intensity and frequency, it became possib

spread the canvas wide. Research for law reform does not, in its co
rative aspect, confine itself to England. To quote only one illustr
of the actual use of the comparative method in India, the report of
Law Commission of India on the Indian Penal Code29 draws heavily
comparative material, which is not confined to the above mentioned
but also covers several Continental countries, American jurisdiction
other areas. There is one more aspect of the comparative method wh
of peculiar interest in the Indian context. Considerable number of A
Indian codes have travelled outside India, particularly in the rea
criminal law and procedure and very interesting points that might
have arisen in India sometimes arise on these codes outside India.
When using the method of comparison, the choice of material for
consultation has always been a matter presenting difficulty to researchers.
The researcher will not find this material easily available in a convenient
form at one place. He will have to search for it in stages, and it is likely
that even after a long and arduous journey he may not reach his destina-
tion. Again, such material as is available may not be of uniform standard
and its range, accuracy and reliability cannot always be very safely
assessed. With law books in plenty, it is not very easy to locate a work
of excellence dealing with foreign law. There are various alternative
modes of commencing research into the position prevailing in a foreign
country on a particular legal topic. One could begin with a book on the
legal system of that country, and then proceed to an exploration of the
particular point with the help of the bibliography that might have been
given in that book. If the problem under investigation is one on which
the law in the other country has been codified, one can adopt the alterna-
tive device of going straightaway to that code, but, then a commentary
may be needed. If the topic is one on which a reliable textbook in the
foreign coutry is available, that textbook can be used. But the case law
has still to be seen. If the researcher can locate a report of a law reform
body of the foreign country concerned (on the subject under discussion),
he would be fortunate enough. Material contained in that report is
usually of a very high order and the researcher can save his labour and
anxiety by utilising it. Sometimes, it may happen that such reports of law
reform agencies contain a discussion of the law not only of that particular
country but also of its neighbouring countries as well. The researcher
would then be doubly fortunate. Use of the relevant gist of discussion in
such a report would, of course, be a use of a secondary source and not of
a primary source.
Whether the source is primary, secondary or tertiary, one precautionary
measure that should, as far as practicable, be adopted in all legal research,
but more particularly in applied comparative law, is of checking and cross-
checking. There could be so many methods of checking and crosschecking.

29. Indian Penal Code [Forty-second Report] (1971).

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 1982] LEGAL RESEARCH AND REFORM 407

Two or more primary sources may be checked

ary source may be checked with a primary s
secondary sources may be checked with each ot
of course, would be for the researcher to visit th
ned and consult its law libraries himself. Ho
ideals in life, this remains difficult to attain b
financial resources. Correspondence with one
countries would be a useful device, effective as a
personal visit.
Foreign and comparative legal material in E
But specialised studies dealing with particular t
frequently published in French, German and, oc
in English. Although physically accessible, th
remains intellectually inaccessible to a research
language.
This difficulty is particularly felt in regard to countries like Japan,
Thailand, Indonesia and other Eastern countries, about whose legal systems
and institutions one may like to have more extensive and intensive infor-
mation than is at present possible. Difficulties of language often come in
the way of acquiring such information. Legal research and discussions in
Japan, for example, practically remain a closed book to Indians, even
though it is well known that that country has achieved great progress in
this respect and a number of publications in Japanese of a very high order
on legal subjects come out with great frequency. No doubt, there are
books in the English language about the aspects of the Japanese legal
system and there are also available series such as law in Japan and
Japanese Annual of International Law, which are accessible to scholars of
other countries. Nevertheless, the reading of this not very profuse
material increases the researcher's appetite, which often remains unsatis-
fied. Here, he must leave the table half-fed and half-hungry.

(4) Statistical research

When a subject of law reform deals with matters of social research,

opinions might have to be invited from the public also. Even apart from
that, the researcher would often wish to gather statistics which give an
idea of the actual working of the law. This is a type of research in
regard to which lawyers in India are not in a very comfortable position.
There are some persons who are, by nature and temperament, shy of
statistics. Anything in the discipline of advanced arithmetic causes a slight
discomfort to them. Moreover, the collection and collation of statistics is
really a specialised subject, and it is difficult to find a legal researcher who
is equally at home in the field of statistical research. Of course, some
kind of statistical device is used by everyone in his private or business
affairs. But when it comes to the presentation of information in the form
of frightening tables, lawyers are ill at ease. Generally speaking, the

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408 Journal of The indián law institute [Voi. 24 : i & 3

magnitude and nature of the statistical information required for law ref
depends on the topic to which the information is relatable. For ex
when one is concerned with a facet of judicial administration, one
need figures about the nature and volume of judicial business, its ri
fall, the institution, pendency and disposal of cases and the like If
concerned with judicial behaviour in its particularity, for example, h
in particular states or areas, the conviction rate for particular offe
going up or coming down, one would need a more specialised table
type of research is one which may have to be undertaken some day
if matrimonial law is the subject of reform, mere figures of institut
disposal may not give a correct picture of the success or fail
matrimonial life. Matrimonial litigation in courts represents o
segment of the total picture of the married life of citizens. The t
and travails, the happiness and misery and the joys and sorrows of
life are, in reality, matters too difficult to capture in statistics.
This naturally brings us to the more usual type of field research- sam
survey, opinion polls and the like. Experience shows that such
research is better conducted by qualified social workers with an ap
and professional training for the purpose. Of course, those qualifi
sociology may not, at the same time, be qualified in law. Thus aris
question of interdisciplinary co-operation. Although interdisci
programmes do not always have a practical utility which, it is clai
they have, here is one kind of work for which such co-operation
useful. Social workers can be given an opportunity of acquirin
knowledge of the elements of law- not the whole law, but (i) t
system in general, and (//) an outline of selected topics, particularly
law and criminal law (these are subjects in regard to which the he
social workers in conducting field research and in presenting it in th
of statistical tables is most often needed). As legal research in
advances and widens its canvas to cover more and more areas of o
the need for providing such opportunities of training will also be i
ingly felt. A three-month course in law and sociology, with the f
drawn from both the disciplines and with some lectures on research
methodology, could be started by some institutions as a beginning.
Empirical research itself is a vast subject, deserving separate treatment.
The comments made above are confined to those facets that are directly
relevant to law reform. Incidentally, while on the point of law and
sociology, mention may be made of certain publications that have now
started appearing. There are now in currency a number of interdisciplin-
ary journals dealing with law and society, law and medicine, law and
psychiatry, law and economics, law and technology, computer law and so
on. In fact, there is even a journal devoted exclusively to interdisciplinary
studies as such. The maximum use should be made of such journals.
Institutions that run combined courses should also be mentioned in this
context. While many of these journals are indexed in the usual documen-
tation of legal materials, some can be traced from the documentation

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1982] LEGAL RESEARCH AND REFORM 409

relatable to disciplines other than law.

(5) Critical research

The presentation of data, whether it be purely lega

be in the shape of statistics, and the marshalling of m
of one discipline or of an interdisciplinary character,
the legal research undertaken for law reform. Where
main objective, this stage may mark the culmination
research, but not so in the case of research for law r
not fully attained until the lines on which reform is
One may call this "normative research". This part of
not the mere evaluation of the material that has bee
envisages the offering of concrete suggestions on the
ation. The scope for forming ethical or value judgme
obvious.30
From where, then, is the material to be drawn for
question is often sought to be answered by saying tha
could be drawn from academic writings and judicial observations.
However, in actual practice, both of these sources are found to yield only
very limited assistance. The researcher will have to fall back upon wisdom
rather than on learning. It could be the wisdom. Ultimately, it is only
experience and maturity that make his wisdom develop.
Public opinion - A question that arises in connection with public opinion
is the modality by which it is to be ascertained. Another equally impor-
tant question concerns the proper part to be played by public opinion in
the formulation of law and legislation. The second question, of course,
has a relevance transcending the process of law reform, and is significant
for the entire legal system and its functioning. Apart from the outstanding
work of A.V. Dicey31 and the more recent publication edited by Morris
Ginsberg,32 there have been specialised studies concerning opinion and
legal change in certain aspects.33 Much has also been written on law and
morality and the role of public opinion in the formulation of rules having
a moral content. However, coming specifically to the first question, it
can be stated that there have been more than one method of ascertaining
public opinion in the process of law reform. There is, in the first place,
the method followed by many law commissions of issuing working
papers.34 Then, there is the alternative of issuing a questionnaire (this

30. See text corresponding to foot note 37.

31. Lectures on the Relation Between Law and Opinion in England During the Ninete-
enth Century (1905).
32. Law and Opinion in England in the 20th Century (1959).
33. See, e.g., Yehezkel Dror, "Law and Social cnange' , xaxiu Tul. u Kev. /5/ ai
789, 794, 801 (1958-1959).
34. See for the practice in the English law Commission, John H. Farrar, Law
Reform and the Law Commission 33, 34, 71 (1974).

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 410 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 Á 3

will be dealt with in some detail later). Where the subject is a shor
or one on which specific proposals or queries may be difficult to form
the law reform body might have to satisfy itself, at least initially
merely issuing a press communique inviting opinions and comm
More elaborate methods can be resorted to at a later stage. Whe
the other hand, the subject is one that requires detailed consultatio
personal exchange of views, a better alternative is the holding o
discussions.

Finally, there is the more interesting question of direct participation by

laymen in the process of law reform.35 There might be a case for includ-
ing lay persons- a suggestion that has often been made by lawyers as well
as by laymen. It may be that a lay commissioner may not be able to
represent the infinite variety of lay interests in the reform, and it may also
be true that he may not be able to participate in the cut and thrust of
debate in the commission. Nevertheless, the experiment is certainly worth
trying. It should not be too difficult to secure the services of a lay person
with high intellectual attainments and with an ability to grasp complex
rules and principles, without that person being himself or herself a lawyer.
To make the discussion concrete, it may be proper to give at least one
example of a field where consultation with the public is highly desirable.
This is the field of family law. Take, as an instance, the status of
illegitimate children, a subject on which changes in the law have already
begun and greater changes are needed.36 No doubt, the subject has many
legal and constitutional aspects and it is ultimately for the legal experts
to prepare and present well-reasoned proposals as to what shape the
reform should take. At the same time, lay participation in such subjects
strengthens the hands of the reformer, increases his enthusiasm and
generally facilitates the work on a matter basically concerned with social
policy.
So far as the Law Commission of India is concerned, it has, for
ascertaining informed opinion, been adopting one or more of the alterna-
tive methods mentioned above as might be appropriate to the nature of the
subject matter of the project and other circumstances. For example,
while preparing reports on certain subjects, tentative proposals have been
issued by the Law Commission; in regard to few other subjects, detailed
questionnaires were sent out to interested persons and bodies for ascerta-
ining their opinion. On matters of a socially sensitive character, oral
discussions have also been held. Sometimes, more than one of these
alternatives may be combined, having regard to the nature, complexity and
importance of the subject.
Questionnaire - Of particular importance in law reform is the
preparation and issue of the questionnaire. Certain guidelines have to be

35. Geoffrey Sawer, "The Legal Theory of Law Reform" 20 Univ. of Toronto Law
Journal 183, 194 (1970).
36. See Harry D. Krause, Illegitimacy: Law and Social Policy (1971).

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1982] LEGAL RESEARCH AND REFORM 411

followed. The process is to be undertaken car

the questionnaire, it has to be remembered that
would not have the time or resources to go into
able to spare only, say, not more than an hou
format of the questionnaire should, therefor
could be elicited readily. This presupposes that there will be 110
ambiguity in any of the questions and that the problems that might have
arisen in the minds of those who sent the questionnaire are presented
with reasonable clarity. Its preparation and issue generally involves
the following stages of work: (/) the selection of topics for questionnaire;
(//) the formulation of questions; and (///) the despatch of questionnaire
and fixing a time limit for sending in replies to the questionnaire.
By many persons, questionnaires are regarded as the very first step, in
a project for reform, to be taken at the beginning of the project. However,
experience shows that a good and meaningful questionnaire postulates
familiarity with the contours of the topics concerned, thus requiring some
study and reflection. In this sense, it is convenient if the preparation and
issue of a questionnaire, instead of preceding the commencement of the
study, is regarded as an intermediate step.
Coming to the length of the questionnaire, it should not be too long
or too short. Too long a questionnaire leads to confusion and is likely
to create increased work when the researcher comes to the stage of
tabulating the various replies with reference to each sub-topic. Too
short a questionnaire fails to elicit useful response, because, if the issues
are not spelt out by the querist, the respondents will not take the trouble
of doing so. In fact, this part of the research work in law reform is a
taxing and laborious one and also time consuming.
Mention was made above of certain guidelines which could be usefully
followed in preparing questionnaire. The following are a few suggestions:
(z) Prefer short questions to long ones and simple questions to complex
ones; (//) make the questions as precise as possible; (///) where the
questions are numerous, arrange them under a few groups, with suitable
group headings; (iv) give marginal headings to each question; and
(v) above all, remember that the questionnaire should not be frightening in
form as it is intended to elicit ready and warm response.
Tabulation of views - Where opinions have been invited on a particular
subject and replies expressing such opinions are received from various
persons, bodies and organisations, it becomes necessary to tabulate the
replies received with reference to each query. Here the order in which
tabulation is made becomes of importance. Where the subject matter of
the project is a non-statutory one on which a questionnaire has been
issued, the tabulation will naturally have to be arranged in the order of the
questions. Where the subject matter of the project is non-statutory and no
questionnaire has been issued as such, but opinions have been invited
generally, the task of tabulation becomes a bit difficult, since, for carrying

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412 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

out the work in a methodical fashion, it will be necessary to i

list of topics and to arrange the points made in the replies in th
the topics so improvised. Where the subject matter of the
statutory, generally it is convenient to tabulate the replies in t
the sections of the statute. It is needless to say that where the
are lengthy, the tabulation has to be sub-sectionwise and n
sectionwise.
What exactly does "tabulation" mean ? Briefly it may bz described
as (/) breaking up each reply into the points made therein, and (//) alloca-
ting the pointwise reply to the question, topic or section to which it relates,
so that the person or persons who are to take a decision as to merits
will have a picture of the opinions received in the law reform agency on
each point. Tabulation means re-distributing the replies so that they are
arranged not personwise but pointwise. This makes it possible to read,
at a stretch, all the shades of opinion on one particular question, topic
or section together, and thus to arrive at an assessment of the relative
quality and quantity of shades of views expressed on that particular
question. It is obvious that for this purpose reply by reply perusal (that
is to say, perusing first the whole reply of one person or organisation and
then the whole reply of another person or organisation and so on) would
be of no use. What is intended to be obtained is a picture of the opinions
topicwise, questionwise or sectionwise. For this reason, it is necessary
that the replies, when received, are broken up, the pointwise views expres-
sed are noted down on separate page and a pointwise self-contained
picture is presented by the researcher. This is, in short, the process of
tabulation.
Now a few points of detail. In reducing the replies to a suitable form
for the above purpose, it is usually necessary that the gist thereof be
summarised rather than that the replies be quoted verbatim. Experience
shows that most replies, at least those sent by laymen and even by some
lawyers, suffer from certain infirmities. Either they are prolix and repetitive
and there is scope for pruning or sometimes the reverse is the situation,
namely, the replies are too cryptic or are not very clear or self-contained.
Here some editing would be needed. Thus, tabulation involves consider-
able intellectual labour. Incidentally, it also involves some physical
labour when one is at the initial stage of breaking up the replies point-
wise.

Ascertaining the points for reform- Assuming that analytical, statis-

tical, historical and comparative research have all been covered, the
crucial question that arises in a project of law reform is, wherefrom does
one get fresh ideas? The writings of theorists, and particularly those of
academic lawyers, come to the mind in this respect. However, as a
source of law reform, these can be of vastly differing degrees of impor-
tance. At their best, they can be of the greatest assistance in inspiring
and formulating reforms; at their worst, they may be positively dangerous
to listen to.

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1982] LEGAL RESEARCH AND REFORM 413

There are, no doubt, illustrations of the wr

possible source of law reform at its best. At t
the worst variety of this species may, without
contributions to legal journals which are some
together. These represent a development in the
which has obtained quite a new degree of emp
two. In itself, it is to be warmly welcomed, f
dynamism in legal education which was sadl
duller type of scholarship which was once thought
tion of the law student. But the "rat race" ha
and what had its origin in a praiseworthy des
decent job of legal research, collateral with the
position, now occasionally involves him in a fr
publish, and publish again", even if he has
even if what he has to say may not be part
with the threat "publish or perish".
In any case, academic writings (as experience
contribute only a small slice to the materi
researcher for law reform. Such writings may
reform, and that too, in a few areas only. But
done in the law reform agency itself.
Formulation of conclusions- The, formulation
legal language is often a matter of difficulty,
is not enough to do the job.
Throughout the Commonwealth, there is
legislative draftsmen.37 A considerable numbe
common law ties, have a desperate need for sp
positions as parliamentary counsel. So grea
January 1973, a meeting of Commonwealth la
that arrangements should be made by the Comm
the support of the Commonwealth Fund for T
investigate the specific requirements of each co
men, and also to find persons qualified to p
programmes on drafting. There was to be a Co
for the dramatic injection of newly trained p
programme has now started. But it may be m
tion of the above initial investigation in thirty
there was virtually no country which could su
assist others in the Commonwealth.
The drafting services are working under g
states can, without extensively disrupting exi

37. A.H. Angelo, "The Mauritius Law Revision

Legislative Drafting Problems", 25 Int. Comp. L.Q. 894

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414 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3

persons for training for any extended period of time. There is, th
something of a dilemma. There are so few people in the field th
difficult to get together the individuals who could improve the s
In a number of places, notably, London, Ottawa and Canberra, co
various kinds are run and some of the universities have advanced courses in
legislation or legislative drafting. However, drafting is so intensely
practical in nature that the ideal training is on-the-job training.

The presentation of research

The "first great principle of writing" - "economy of mental eiïort on the

part of the reader"38 - espouses the reader's interest in clarity. The writer's
foremost interest in clarity, on the other hand, is a certainty that he
understands precisely what he is saying. From either view, clarity is the
writing quality which legal researchers must cultivate above all others.
In order to give clarity its due, fresh researchers generally must do
to excess, judged by normal canons of style, those things which produce
clarity. These include, for example : use of short sentences and short
paragraphs, introductory summary of points, summary restatement of
points, profuse use of section headings and explanatory connective passages,
and express statement of the "obvious', that is to say, of premises.

Bibliography

A matter of practical importance in law reform is the preparation of

a bibliography. Here, mention will be made only of those aspects which
seem to possess special importance in the context of law reform. In prepa-
ring a bibliography - as every resercher of some experience knows - it
becomes necessary to consult not only several books, but also several
scholars. An individual scholar may be an expert in a particular field
which is his own, but his personal outlook can cover only a part of the
whole, and has, therefore, to be supplemented.
It is also to be noted that a bibliography is never static. It grows
with the study, and, with its growth the researcher also grows. This is
a fact familiar to all those who are consistently pursuing a career of
research.

Rewards of research

What are the rewards of research? Apart from monetary gain, there
are higher rewards - spiritual and intellectual.
The belief must be communicated to the researcher that, in Justice
Holmes' words, "[A] man may live greatly in the law as well as elsewhere;
that there as well as elsewhere his thought may find its unity in an

38. Rickard, Technical writing 11 (1931), quoted in H. Weihofcn, Legal Writing

Style 4 (1961).

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1982] LEGAL RESEARCH AND REFORM 415

infinite perspective. That there as well as elsew

self upon life, may drink the bitter cup of hero
out after the unattainable."39
Another reward of research is awareness of judicial creativity, associated
with growth in the law. As Wigmore has pointed out :

To any student it is an important intellectual stage when he

first realizes that all law is in a state of constant motion, like a
kaleidoscope. I do not remember just when this realization came
to me; I know it was not while in the Law School; but as I look
back, I note a great difference in all my notions about law since
the time of that realization.40

Like a good lecture, a good research paper is satisfying, enlivening,

absorbing. It can make the law sing.

39. Quoted by Sol M. Linowitz, "Our Changing Society : The Lawyer's Challenge",
54 ABA. J. 445, 450 (1968).
40. John H. Wigmore, ť*Nova Methoqus Discenqae Docenqaeque jurispruaemi&ç,
XXX ffarv. L. Rev. 813 at 823 (1917),

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