Historical Research appraoch

Seema Dhami
 Approach or method

An approach to research does not have guideposts

as to how the things are to be done while carrying
out the research whereas a method is about laying
out the modus operandi of how the things are to be
done. Moreover, an approach may be a part of
more than one method.
To put it otherwise, methods may vary, but the
approach in question may continue to be historical.
That is, different methods may adopt the same
approach, that is, historical approach. The method
may be doctrinal, non-doctrinal or socio-legal
research.
 Introduction

• A proper study of past will provide key to the present.

Historical approach shows gradual evaluation of the law on
the certain lines and shows the general trend to change .
• The present day socio-legal system, social and legal
institutions and their varying forms and rules could be
easily explained by the study of history.
• Historical appraoch help of past we can evaluate present
and predict forth coming laws
• P.V. Young says, "Though today is different from yesterday,
it was shaped by yesterday. History is essential to
understand our present environment that we should know
how it grew up. History is the story of its development; of
its evolution and of its origin; and it helps to explain the
present in this way."
 Cont...

• Historical appraoch of research is the study of

past facts, events or institutions. The aim of
such approach is to find out how and why
certain rules, principles have come to take
present form.

• The main purpose of this type of research in

law is to find out origin and development of
law that has some kinds of relationship with
other laws for bringing reforms in the
existing law.
 Cont...
Examples: historical development of general laws (Muluki
Ain) in Nepal etc.
Whereas, it is not possible to deal with all transactions only through religious
literatures (Shastra) over the course of time, and alterations and amendments
have been made, to the tune of the country, time and circumstance, from time to
time, to the Muluki Ain (General Code), which was prepared by an order issued by
our great ancestor the then His Majesty to then Prime Minister and came into
force on the Seventh day of the month of Poush of the year 1910; and whereas, it
is expedient also to make other amendments to the Muluki Ain, in view of the
existing political, economic and social systems, while consolidating these
alterations and amendments
The historian’s task is to find evidence, analyze its content
and bias, corroborate it with further evidence, and use that
evidence to develop an interpretation of past events that
holds some significance for the present.
 Cont...

• Historical approach to legal research helps untangle

legal problems rooted in the past.
• It often provides guideposts showing how things have
developed and evolved over the years.
• Historical research would often show that a particular
existing law, justifiable at the time when it was passed
is no longer justifiable. A researcher may find that the
reasons that justified the original inclusion are not in
existence at present.
• Historical research may often reveal that alterations in
the law on particular lines which are now tentatively
under consideration had already been thought of in the
past also, in the earlier attempts at reform of the law,
 Cont...

• By historical approach one can understand the

gradual evolution of the law on certain lines.
The general trend of change can be easily
ascertained. While doing historical research one
has to go beyond the legal field. she/He may
have to apply psychological, technological,
ideological and demographic variables.

• A legal researcher may be required to revisit

these facts and extricate them from
insignificance so that they continue to be
relevant to law, and to society at large.
 Cont...

• Historical account of how legal institutions and the

Law have evolved with the march of time presents
a fascinating picture of the working of law, and
reveals facts crucial to unravelling many a legal
difficulties that requires often looking back to the
past.Such facts usually lie forgotten, ignored or
dusted in the annals of legal history.
• Historical approach to legal research therefore
assumes great significance as to understanding the
contributions made institutionally or individually to
the evolution and working of law.
 Cont...

In the book ' Scientific Social Surveys and Research'

P.V. Young describes sources of historical data
highlighting both the adequacy and limitations of
historical data. The social scientists generally
confine themselves to three major sources of
historical information:
(i) Documents and various historical sources to
which historians themselves have access;

(ii) materials of cultural history and of analytical

history;
 Cont...
• (iii) personal sources of authentic observers and
witnesses when, how and under what
circumstances these sources are to be used
depends upon the discretion of the researcher's
interest, the scope of the study and the
availability of the sources.

• Therefore sources of information are diaries,

autobiographies, manuscript, maps, books,
archives, museum, official documents, physical
remains of historic sites, recorded data, pictures
and so on.
Essential requirements of historical appraoch

• Social insight- The researcher should have insight to understand the

cause-effect relating to social-legal events.

• Historical oriented study- The facts and events should be

understood and seen in the historical perspective, only then a
researcher can draw correct conclusions.

• Unemotional capacity- he should remain unemotional while

studying the historical evolution of law i.e., he should study the
facts and events as they are.

• Imaginative capacity- the researcher should be capable of

understanding the topic discussed by the history of the legal issues.
He should have fertile imagination so that he can draw a complete
picture of study
 cont...
• Capacity to select- the researcher should possess the
talent of selecting and rejecting. She/He will have to
choose and pick up the material useful and relevant to
the study.

• Analyzing and coordinating capacity- the researcher

should be able to analyze the historical material useful
for her/his study and should be able to coordinate the
present day conditions.

• Knowledge of study field- the researcher should have

complete knowledge of the legal field of her/his study as
he will not get ready made material in the history for
study work. He will have to search it out.
 Usefulness of historical approach in law

The Historical appraoch has its own significance

in Legal reseach. Firstly it stops a hapahazard
changed in Law ie stoping to change or reform
existing laws neglecting historical significance ,
secondly, this approach helps to compare or
analyzed laws with respect to past event, thirdly,
this approach shows justifications of the validity
of laws with reference to history and finally the
histori of the particular idea that has been given
a concrete shape in Law is studied in depth .
 Cont...

• Historical research is useful in law where the

present statutory provision or rule of law has
raised meaningful queries and it becomes
necessary to explore the circumstances in which
the present position came about.
• An exploration of the historical material gives a
clue to know why a particular provision was
framed in the form in which it now appears.
• 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.
 Limitations of Historical research

• Usually historians cannot write dispassionately

(unemotionally). The statements cannot be accepted
as they are. They seem to favour one or the other side.
• Not all happenings in time and space can be known at
the time of writing.
• Personal bias and private interpretation often enter
unconsciously.
• Historians cannot conclude all the details in their
narration.
• Historical material is difficult to be collected.
• Historical method may not be applied to all legal
issues.
 Conclusion
• Historical approach to legal research remains
distinct vis-à-vis any other approach as it provides
framework to analyse the development of law as
well as the working of law, both from internal and
external perspectives. There is greater need to
develop strong preference for historical approach.

• Legal research and understanding of how law

works textually as well as contextually, and how
the inter play between the both results into law
making. External factors and influences play a
great role experientially.