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UNIT 3

APPROACHES TO
LEGAL RESEARCH

LEGAL RESEARCH
Legal researchers have always struggled to explain

the nature of their activities to colleagues in other


disciplines.
Although there is a tradition of theoretical
scholarship (or jurisprudence) within the law, this
tends to address abstract philosophical questions
about the nature of law itself.
Over the past few decades, academic legal research
has become more and more interdisciplinary.

LEGAL RESEARCH
Traditional notion of law as a self-contained

discipline abandoned, legal academics have


identified in economics, social sciences, and politics,
among other things, some of the subjects outside of
the law that are most commonly intertwined with
legal issues.
In particular, two different, interdisciplinary legal
approaches have become rather popular in
academia: Law and Economics (L&E) and Critical
Legal Studies (CLS)

LEGAL RESEARCH
There is a difference between pure academic

knowledge about the operation of the law


(fundamental research) and
knowledge of the same kind which has been
produced with a particular purpose in mind.
The purpose of the latter will generally be to
facilitate a future change, either in the law itself, or
in the manner of its administration (law reform
research).

LEGAL RESEARCH
The following approaches would paint a picture of the
common approaches to legal research:
Black-letter legal research approach (traditional,
doctrinal)
Empirical legal research approach (socio-legal)
Comparative legal research approach (new &
emerging)

Black-letter approach (traditional, doctrinal)


Traditional tendency of legalistic approaches to concentrate

solely on the 'letter of the law'.


The primary aim of this method of research is to collate,
organise and describe legal rules and to offer commentary
on the emergence and significance of the authoritative legal
sources in which such rules are considered, in particular, case
law, with the aim of identifying an underlying system.
This process requires the student to interpret each case on the
basis that it forms a system of inter-related rules rather
than a stand-alone decision. Once a rule has been identified, it
needs to be further generalised as binding, taking its place in a
coherent way (Precedence)
Requires ability to 'think like a lawyer'.

Black-letter
Focus is on primary sources: case law and statute and to a

lesser extent, academic commentary.


Focuses on the law in books rather than the law 'in action',
thereby overlooking the sociological and political implications.
May appeal to the 'traditional' law student although it does
inevitably mean that that moral and political discussions will
always be marginal to the research
Normative in character - concerned with the discovery and
development of legal doctrines for publication in textbooks or
journal articles and its research questions take the form of
asking what is the law? in particular contexts.
Legal rules are normative in character as they dictate how
individuals ought to behave (Kelsen, 1967).

Empirical legal research approach (socio-legal)

Emphasises the use of empirical research approaches

similar to other social science disciplines such as


economics, political science, sociology, and psychology
Involves the systematic collection of information
(data) and its analysis according to some generally
accepted method.
Of central importance is the systematic nature of the
process, both of collecting and analysing the
information.
A second important characteristic of empirical research
is its cyclical (recurrent) character.

Empirical
Starts with a question (research problem), passes through

several activities like theorising, literature review, data


collection, data analysis
formulation of an answer to the research problem often starts
again in another cycle addressing one or more related research
questions.
Empirical research helps us understand how the law works in
the real world the impact that law, legal institutions, legal
personnel and associated phenomena have on people,
communities and societies, as well as the influence that various
social, economic and political factors have on law, legal
phenomena and institutions.

Empirical
Can be found within academic groupings such as socio-legal studies, law

in context, law and society, empirical legal studies, criminology and


criminal justice, as well as within more mainstream departments in law
and the social sciences.
In SA, such empirical scholarship is booming (South African Human
Rights Commission (SAHRC), Human Sciences Research Council (HSRC)
This approach may appeal to those students from a social sciences
background, those with a prior background in legal practice or those not
working towards a 'pure' law degree.
A sociological approach seeks to gain empirical knowledge and an
understanding of how the law and legal proceedings impact on the parties
involved.
It often fills a gap in the understanding of 'law in action' found in
black letter methodology perspective.

Empirical
Students opting for this approach need to be alive to the

possibility of ethical issues arising such as informed


consent and confidentiality. Students therefore need to
familiarise themselves with any statement of ethical
principles for the conduct of research that their own
institution may adhere to.
The more sophisticated forms of socio-legal research require
a high level of methodology awareness in that students may
be required to justify their choice of methodology.
It should be appreciated however that such research is far
more time consuming than the traditional black-letter
methodology.

Comparative approach

Comparative approach
A law student must learn the laws of his country.

Granted. But he must approach them with a mind


free and unrestrained, not with that of a slave. He
must know how to rise above them, to see them in a
proper perspective, to take the larger view, to form a
rational and critical estimate of their strength and
weakness. Now there is no better, perhaps no other,
method of fostering the right habit of mind than the
comparative study of more than one
system.(Lee,1916)

Comparative approach
The political and civil laws of each nation ... should be adapted in
such a manner to the people for whom they are framed that it should
be a great chance if those of one nation suit another. They should be
in relation to the nature and principle of each government: whether
they form it, as may be said of politic laws; or whether they support
it, as in the case of civil institutions. They should be in relation to the
climate of each country, to the quality of its soil, to its situation and
extent, to the principal occupation of the natives, whether
husbandmen, huntsmen, or shepherds: they should have relation to
the degree of liberty which the constitution will bear; to the religion
of the inhabitants, to their inclinations, riches, numbers, commerce,
manners, and customs
Montesquieu

De l'esprit des lois (1748)

Comparative approach
Not a branch of law as such but is, in fact, a method or

process of comparing laws. A more appropriate term


would be comparative method. Since the latter half of the
twentieth century an increasing worldwide interest has been
shown in the development of comparative legal studies.
Students who have experience of the operation of law in
other jurisdictions may find the comparative analysis
approach of interest, particularly if this allows them to make
use of their pre-existing knowledge.
The increasing availability of cases, statutes and articles on
other legal systems on line has resulted in an increase in
popularity with this particular methodology.

Comparative approach
It can be used is areas for potential reform
As can be seen, both qualitative and quantitative

methodologies can be adopted in a legal research.


Careful consideration must be given to what is the
most appropriate one in all the circumstances taking
into consideration the topic under investigation,
personal references and resources available, both in
terms of time and money.

Why is comparative legal research worthwhile?

Enhances the vision of the lawyer employing this method


Could be utilised within the human rights field, considering for

example changing attitudes to slavery in social and economic


history. Such research does however presuppose some
knowledge of the past
The promotion of mutual understanding by acquiring
knowledge of foreign legal systems. Study of the nature of law is
too restricted if carried out solely within a single frame of
reference, eg, property rights in Western countries (private,
capitalist) compared to African countries (communal
ownership)

Comparative approach
Enables jurists and statesmen alike to better

understand foreign attitudes to law and not mistake


them for bad faith.
The move towards internationalisation, viz the
growing importance of efforts to achieve a unification
of legal rules in different countries. Particularly in the
sphere of a discipline like private international law,
this is extremely important from a practical point of
view. The Hague Conventions on the Unification of
Private International Law are examples.

Comparative approach
The promotion of developments in national law. In the

global context there are many examples of how borrowing or


legal transplants have come about in the development of
national law, eg, the Code Napolon which led to the adoption of
many French legal institutions throughout Francophone Africa
and countries like Syria and Indochina. This facilitated a
comparative study of French law in the countries concerned.
Likewise, the importation of the English common law into the
United States, Canada, India, Australia, New Zealand, SA fostered
comparative legal studies in those countries.
In order to take timely note of and prepare for social changes
and upheavals that have already materialised elsewhere.

Comparative approach
To export ones own legal culture.
To determine policies which should find application in ones own

legal systems legislation, case law and academic publications.


It informs about the social function of the law and it also fosters
insight into specific legal principles or legal principles in general.
Usually employed to resolve a specific legal problem, but it could
also be followed out of sheer curiosity mental gymnastics!
The pursuit of purely practical ends - businessmen for
information on the implications of foreign law for their trading
activities as an aim in itself.