LBCU 001-RESEARCH METHODS IN

LEGAL INVESTIGATIONS
LESSON ONE
LECTURER: Dr. Ruth Thinguri
EMAIL: nthinguri@yahoo.com or ruththinguri63@gmail.com
CELL NO. 0725-856-627
SEMESTER: MAY-AUGUST 2018
VENUE: MKUSOL 401
GENERAL INTRODUCTION
TO THE COURSE
• GENERAL INTRODUCTION TO THE COURSE
• 1. Course content/outline
• 2.Course description
• 3.Reference text books
• 4.Mode of instruction/learning [lectures, tutorials, discussions
and case studies]
• 5.Mode of Assessment/Examination
• 6.Class familiarization
INTRODUCTION TO LEGAL
RESEARCH
• GROUP ALLOCATION AND LEARNING ACTIVITY
• GROUP ONE
• GROUP TWO
• GROUP THREE
• LESSON ONE:INTRODUCTION TO LEGAL RESEARCH
• Lesson objectives
• Definition of key terms
• Characteristics of legal research
• -Law and society mutual relationship
• -Legal system-a system of norms and social system
• -Role of law in planned of socio-economic development
Thought idea
• Thought idea
• “To become good lawyers, it is not enough for students to
learn the fundamental principles of the law: law students also
need to learn the process for analyzing the law. This process
includes identifying and extracting rules from court decisions,
understanding how those rules are structured, and learning
how to apply those rules to a specific fact situation. This legal
analysis can be used for prediction (to accurately predict the
outcome of a client’s problem) or for persuasion (to persuade a
court of the correctness of the result being sought for the
client).” Sourced from
http://law.widener.edu/Academics/LegalMethods.aspx.
LESSON OBJECTIVES
• After going through the lesson, you will be able to:
• Ø To familiarize students with the mutual relation and
interaction between ‘law’ and ‘society’
• Ø To explain the social dimension of law
• Ø To stress the need for legal research
• Ø To highlight role of law in the socio-economic
transformation
DEFINITION OF KEY TERMS
• ‘Research’, in simple terms, can be defined as ‘systematic
investigation towards increasing the sum of human
knowledge’ and as a ‘process’ of identifying and
investigating a ‘fact’ or a ‘problem’ with a view to acquiring an
insight into it or finding an apt solution therefor.
• An approach becomes systematic when a researcher follows
certain scientific methods.
• In this context, legal research may be defined as ‘systematic’
finding law on a particular point and making advancement in
the science of law.
CHARACTERISTICS OF LEGAL
RESEARCH
• In this context, legal research may be defined as ‘systematic’
finding law on a particular point and making advancement in
the science of law.
• However, the finding law is not so easy. It involves a
systematic search of legal materials, statutory, subsidiary and
judicial pronouncements.
• For making advancement in the science of law, one needs to
go into the ‘underlying principles or reasons of the law’.
These activities warrant a systematic approach.
• An approach becomes systematic when a researcher follows
scientific method.
CHARACTERISTICS OF LEGAL
RESEARCH
• Generally, law is influenced by the prevailing social values and
ethos.
• Most of the times, law also attempts to mould or change the
existing social values and attitudes.
• Such a complex nature of law and its operation require
systematic approach to the
• ‘understanding’ of ‘law’ and its ‘operational facets’.
• A systematic investigation into these aspects of law helps in
knowing the existing and emerging legislative policies, laws,
their social relevance and efficacy, etc.
CHARACTERISTICS OF LEGAL
RESEARCH
• In this backdrop, the present course on Legal Research
Methods intends to acquaint the students of law with
scientific methods of inquiry into law.
• It also intends to make them familiar with nature, scope, and
significance of legal research.
• In addition, it endeavors to make them aware of role of legal
research in the development of law and legal institutions, in
particular and socio-economic development of the country in
general.
COURSE OBJECTIVES

• The course addresses to sources, categories and types of legal

research.
• It focuses on legal research methods and tools.
• It highlights different dimensions and tools of doctrinal
legal research as well as non-doctrinal legal research or
socio-legal research.
• In other words, the course strives to instill in the law students
basic skill of identifying research problems, planning and
executing legal research projects and of appreciating the
problems associated therewith.
• It aims at instilling in them basic research skills so that they
can plan and pursue legal and socio- legal research in future.
LAW AND SOCIETY: MUTUAL
RELATIONSHIP & INTERACTION
• Law does not operate in a vacuum. It has to reflect social
values, attitudes and behavior. Societal values and norms,
directly or indirectly, influence law.
• Law also endeavors to mould and control these values,
attitudes and behavioral patterns so that they flow in a proper
channel.
• It attempts either to support the social system or to change
the prevalent social situation or relationship by its formal
processes.
• Law also influences other parts of the social system.
• Law, therefore, can be perceived as symbolizing the public
affirmation of social facts and norms as well as means of
social control and an instrument of social change 1 .
LAW AND SOCIETY: MUTUAL
RELATIONSHIP & INTERACTION
• Commenting on the interrelationship between law and
society, Luhman observed:
• All collective human life is directly or indirectly shaped by law.
Law is, like knowledge, an essential and all pervasive fact of
the social condition. No area of life-whether it is the family
or the religious community, scientific research is the internal
network of political parties-can find a lasting social order that
is not based on law ---. A
• minimum amount of legal orientation is indispensable
everywhere. 2
LAW AND SOCIETY: MUTUAL
RELATIONSHIP & INTERACTION
• Law is not, nor can any discipline be, an insular one. Each rule
postulates a factual situation of life to which the rule is to be
applied to produce a certain outcome.
• Law, in essence, is a normative and prescriptive science. It lays
down norms and standards for human behavior in a set of
specified situation(s). It is a ‘rule of conductor action’ prescribed
or formally recognized as binding or enforced by a ‘controlling
authority’. It operates in a formal fashion. It enforces these
prescribed norms through state’s coercive powers.
• However, the societal values and patterns are dynamic and
complex. These changing societal values and ethos obviously
make the discipline of law dynamic and complex. Law,
therefore, has to be dynamic.
LAW AND SOCIETY: MUTUAL
RELATIONSHIP & INTERACTION
• Law has acquired a paramount significance in a modern welfare state
as an effective instrumentality of socio-economic transformation. It
indeed operates as a catalyst for such a transformation.
• Such a complex nature of law and its operation require systematic
approach to the ‘understanding’ of ‘law’ and its ‘operational facets’.
• A systematic investigation into these aspects of law helps in knowing
the existing and emerging legislative policies, laws, and their social
relevance.
• It also enables to assess efficacy of law as an instrument of socio-
economic changes and to identify bottlenecks, if any. Law, thus, has a
social context.
• Law without its social context is simply a noteworthy mental
exercise. ‘Law without social content or significance is law without
flesh, blood or bowels’. 3
LEGAL S YSTEM: A S YSTEM O F
NORMS AND SOCIAL SYSTEM
• In this introduction a system of law can be conceptualized in
three principal ways.
• First, a legal system can be conceived as an aggregate of legal
norms.
• Second, it can be conceived as systems of social behavior, of
roles, statutes, and institutions, as involving patterned
interactions between the makers, interpreters, breakers,
enforcers, and compliers of the norms of law.
• Third, legal system may be equated with social control
systems, involving differential bases of social authority and
power, different normative requirements and sanctions, and
distinctive institutional complexes.
LEGAL S YSTEM: A SYSTEM O F
NORMS AND SOCIAL SYSTEM
• Thus, there are three dimensions or aspects of a legal system:
(i) legal system as a normative system,
• (ii) legal system as a social system, and
• (iii) legal system as a combination of formal and non- formal
norms of social control. Each one of these dimensions of ‘legal
system’, however, raise different queries for investigation and
set different orbits for inquiry.
LEGAL S YSTEM: A S YSTEM O F
NORMS AND SOCIAL SYSTEM
• Legal system, as an aggregate of legal norms, raises a set of typical questions.
A prominent among them are:
• How is law generated?
• What forces in society influenced or created particular kinds of law?
• What makes a system of law out of a vast and heterogeneous mass of
normative materials?
• By what concepts and criteria can we identify the existence of a legal system?
• While the second conception of legal system warrants a study of institutional
behavioral patterns and roles of the lawmakers (Legislature), law interpreters
(Judges), law-enforcers (the police), law-breakers (wrongdoers) and law-
compliers (law-abiders) and their influence, individual or cumulative, in the
legal system and legal processes.
• The third one addresses to the inter-relationship (supportive or otherwise)
between the formal (legal) rules and (informal) non- legal rules (such as
religious, indigenous, or customary norms) in shaping law as social control
system.
LEGAL S YSTEM: A S YSTEM O F
NORMS AND SOCIAL SYSTEM
• Further, it is necessary to recall, in brief, some of the
philosophical explanations of law as they have a significant
bearing on the social dimension or context of law.
• These explanations look at law in its working and the myths
about functioning of law and truth about its role.
• The basic tenet of Marxian approach to law is that ‘law’,
though social system structures it, is an instrument in the
hands of the classes in power to use it to protect their own
interests.
• The class in power uses law to exploit powerless classes.
• While Roscoe Pound insists that law is an instrument of social
engineering. He asserts that law can be an effective tool for
establishing an egalitarian social order.
LEGAL S YSTEM: A S YSTEM O F
NORMS AND SOCIAL SYSTEM
• Traditionally,
• the first dimension of legal system, namely law as a system of
norms, is the domain of academic lawyers;
• the second one, i.e. law as a system of social behavior, is of
sociologists, and
• the third one is of social anthropologists. These three
dimensions of a system of law, in ultimate analysis, broadly
speak of normative character of law (or perceive law as system
of norms) and of social context (or sociology of law) of law.
• It treats law as a means to define an end.
• The traditional perception of law as a system of norms concerns
with analytical- linguistic study of law while the sociology of law
highlights the ‘social context’ of ‘law’.
ROLE OF LAW IN A PLANNED SOCIO-
ECONOMIC DEVELOPMENT
• A contemporary modern state, which endeavors to bring
socio-economic transformation envisaged in its Constitution,
assigns a catalyst role to law.
• It strives to bring such a transformation through a cluster of
social welfare legislations enacted in pursuance of its
constitutional objectives, policies and perceptions.
ROLE OF LAW IN A PLANNED SOCIO-
ECONOMIC DEVELOPMENT
• For example, a careful look at the well-articulated ‘economic objectives’, ‘social
objectives’, and ‘environmental objectives’ embodied in the FDRE Constitution
6 reveals laws’ role in accomplishing them.
• The Government, inter alia, is duty bound to ensure that all Kenyans get equal
opportunity to improve their economic conditions and to promote equitable
distribution of wealth among them and to deploy land and other natural
resources for the common benefit of the People and development.
• It has also to make endeavor to protect and promote the health, welfare and
living standards of the working population of the country.
• The Constitution also obligates the Government to provide special assistance to
Nations, Nationalities, and Peoples least advantaged in economic and social
development.
• The Constitution also envisages Kenyans access to public health and other basic
amenities.
• It assures them of a clean and healthy environment.
• All these constitutionally contemplated prescriptive obviously assign a greater
role to ‘law’ in their accomplishment.
ROLE OF LAW IN A PLANNED SOCIO-
ECONOMIC DEVELOPMENT
• LEARNING ACTIVITY
• Activity 1.1: What relationship is there between Kenyan
Laws (choose sample laws, such as Constitutional law, Family
Law, Commercial law, Criminal law, etc) and the Kenyan
People, Nations and Nationalities?
• Discuss in your groups
REVIEW ACTIVITY
• CHECK YOUR PROGRESS
• Ø What is the link between law and society?
• Ø Does law influence society or society influence law?
• Ø Describe social dimensions of law
• Ø Is law normative in character or a part of social system?
• Ø Comment upon roles of law in bringing socio-economic
changes
FURTHER SUGGESTED READINGS
• FURTHER SUGGESTED READINGS
• v Yehezkel Dror, Law and Social C hange, 33 Tul LR 749 (1959)
• v A V Dicey, Lectures on the Relation between Law and Public
Opinion in
• England during the Nineteenth Century (MacMillan, 1905), pp
1-42
• v Vilhelm Aubert, Some Social Functions of Legislation, 10 Acta
Sociologica 99 (1966)
• v Julius S tone, Social Dimensions of Law and Justice (Stanfo
rd University, Stanford, 1966)
• v W Friedmann, Law in a Changing Society (Stevens & Sons,
London, 2nd edn,
• 1972), chap 1: the Interaction of Legal and Social Change