Doctrinal legal research method a guiding principle in ... | Schemes and Mind Maps Law

128

International Journal of Law

ISSN: 2455-2194

Impact Factor: RJIF 5.12

www.lawjournals.org

Volume 3; Issue 5; September 2017; Page No. 128-130

Doctrinal legal research method a guiding principle in reforming the law and legal system towards the

research development

Vijay M Gawas

Assistant Professor-cum-Assistant Director, UGC Centre for the Study of Social Exclusion and Inclusive Policy, Goa University,

Taleigao Plateau, Goa, India

Abstract

The doctrinal legal methodology is a period of time to alteration and transition. The scope of the doctrinal method is the choices

can make the identified the problems and challenges can be easily encountered by research scholar.

All legal researchers are use of doctrinal research method. In this transitional time, legal scholars, law teacher and academic

lawyers are using evidence and methods from other disciplines into their reasoning to bolster their reform law and legal System

towards the Research development.

It also interplays the discipline of law with other disciplines in the pursuit of law reform and legal System towards the Research

development. It focuses on the law reform commissions, and those independent government committees to play such an important

role in law reform in common law jurisdictions. For this purpose, the secondary data from law books, law articles, law journal,

newspaper etc. have been used.

Keywords: doctrinal research, character, sources, role, tools

1. Introduction

The word Research is derived from the French word research

meaning to search or seek again” [

]. It means that to intensive

research with a view to become certain and to investigate

thoroughly” [

]. Research is main roots to find the appropriate

the solution of the problems of the society. It is directly

proportional to the development, and development is directly

proportional to the reformation of society” [

]. In order, the

researcher also finds out the need of law reform towards the

Social development, and thereto, the Research is one of the

important tools for law reform and changing the pattern of the

Society.

The Nature of Law and Society are requires to change

according to the circumstance, but most important things that

Law can change the social relations as well as Society. The

law has to be reformed according to the need of society and

community. Similarly, there are many problems in the society

and these problems will be never end.

Now day, the legal research has undergone a tremendous

change on the path of better understanding of the role of the

law in society. It also need to emphasis on repeal of outdated

legislation and other codification of Legislation. The law

reform is become more complex and unworkable some

reshaping of areas of law especially in the common law. It

also devising of new legislative and regulatory framework

designed to meet new challenges facing in society especially

Dr. Rattan Singh, Legal Research Methodology, published by LexisNexis,

1st Edition2013, India, at 5

Ibid

Rattan Singh, Legal Research Methodology, published by LexisNexis, 2nd

Edition 2016, India, at.4

those arising for scientific and technological development.

The emerging of new trend for law reform agencies need to

review the impact of relatively recent legislation and find out

the objectives of such legislation and recommended further

reforms. The Law reform is the process of examining existing

laws and advocating and implementing changes in a legal

system, usually with the aim of enhancing justice or

efficiency” [

Similarly, Legal research wanted to undertake the law reforms

are broadly classified into two categories i.e. doctrinal legal

researches and socio-legal research. The doctrinal legal

researches are important element to identify the various

problems of the society. It is very helpful to improve the

social relations as well as Society while reform law towards

the Social development. Therefore, the legal research Scholar

and academic lawyers are use of the doctrinal research method

in the pursuit of law reform.

2. What is doctrinal Legal Research Method?

The word doctrine has derived from Latin which means to

instruction, knowledge or learning” [

]. The doctrine legal

research is research into legal concept and principle of all

types of case, statutes and rules” [

]. It was dominated the

influence in 19th and 20th century view of law and legal

scholarship, therefore, it tends to dominant research design.

The doctrinal research, is concerned with analysis of the legal

Ibid

See, http://www.studymode.com/essays/Significance-And-Relevancy-Of-

Doctrinal-Research-55442354.html dated 7/10/2017

supra Note 5

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ISSN: 2455-

Impact Factor: RJIF 5. www.lawjournals.org Volume 3; Issue 5; September 2017; Page No. 128-

Doctrinal legal research method a guiding principle in reforming the law and legal system towards the

research development

Vijay M Gawas Assistant Professor-cum-Assistant Director, UGC Centre for the Study of Social Exclusion and Inclusive Policy, Goa University, Taleigao Plateau, Goa, India

Abstract The doctrinal legal methodology is a period of time to alteration and transition. The scope of the doctrinal method is the choices can make the identified the problems and challenges can be easily encountered by research scholar. All legal researchers are use of doctrinal research method. In this transitional time, legal scholars, law teacher and academic lawyers are using evidence and methods from other disciplines into their reasoning to bolster their reform law and legal System towards the Research development. It also interplays the discipline of law with other disciplines in the pursuit of law reform and legal System towards the Research development. It focuses on the law reform commissions, and those independent government committees to play such an important role in law reform in common law jurisdictions. For this purpose, the secondary data from law books, law articles, law journal, newspaper etc. have been used.

Keywords: doctrinal research, character, sources, role, tools

1. Introduction The word Research is derived from the French word research meaning to search or seek again” [1]. It means that to intensive research with a view to become certain and to investigate thoroughly” [2]. Research is main roots to find the appropriate the solution of the problems of the society. It is directly proportional to the development, and development is directly proportional to the reformation of society” [3]. In order, the researcher also finds out the need of law reform towards the Social development, and thereto, the Research is one of the important tools for law reform and changing the pattern of the Society. The Nature of Law and Society are requires to change according to the circumstance, but most important things that Law can change the social relations as well as Society. The law has to be reformed according to the need of society and community. Similarly, there are many problems in the society and these problems will be never end. Now day, the legal research has undergone a tremendous change on the path of better understanding of the role of the law in society. It also need to emphasis on repeal of outdated legislation and other codification of Legislation. The law reform is become more complex and unworkable some reshaping of areas of law especially in the common law. It also devising of new legislative and regulatory framework designed to meet new challenges facing in society especially

(^1) Dr. Rattan Singh, Legal Research Methodology, published by LexisNexis, 1 st^ Edition2013, India, at 5 (^2) Ibid (^3) Rattan Singh, Legal Research Methodology, published by LexisNexis, 2nd Edition 2016, India, at.

those arising for scientific and technological development. The emerging of new trend for law reform agencies need to review the impact of relatively recent legislation and find out the objectives of such legislation and recommended further reforms. The Law reform is the process of examining existing laws and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency” [4]. Similarly, Legal research wanted to undertake the law reforms are broadly classified into two categories i.e. doctrinal legal researches and socio-legal research. The doctrinal legal researches are important element to identify the various problems of the society. It is very helpful to improve the social relations as well as Society while reform law towards the Social development. Therefore, the legal research Scholar and academic lawyers are use of the doctrinal research method in the pursuit of law reform.

2. What is doctrinal Legal Research Method? The word doctrine has derived from Latin which means to instruction, knowledge or learning” [5]. The doctrine legal research is research into legal concept and principle of all types of case, statutes and rules” [6]. It was dominated the influence in 19th^ and 20th^ century view of law and legal scholarship, therefore, it tends to dominant research design. The doctrinal research, is concerned with analysis of the legal

(^4) Ibid (^5) See, http://www.studymode.com/essays/Significance-And-Relevancy-Of- Doctrinal-Research- 554 42354.html dated 7/10/ (^6) supra Note 5

doctrine and how it has been developed and applied” [7]^ and these types of research known “as pure theoretical research” [8]. The stability and certainty of law are desirable goals and

social value to be followed and which make the doctrinal research a primary concern to a legal researcher” [9]. According to S.N. Jain observed that doctrinal research involves analysis of case law, arranging, ordering and systematising legal propositions and study of legal institution through legal reasoning or rational deduction” [10]^ It also provides the systematic exposition of the rules which are governing in a particular legal category. Perhaps, the doctrinal research also predicts future development and explains the areas of the difficulty. The doctrinal research, thus involves systematic analysis of statutory provision and of legal principle involves therein, or derived there from, and logical and rational ordering of the legal propositions and principles” [11]. It also said that doctrinal research is basically are research into law. Mostly the researchers also give the more emphasis on substantive law rules, doctrines, concept and judicial pronouncements; however the doctrinal research based on the legal proposition and judicial pronouncement of the appellants’ courts and other conventional legal material such as parliamentary debates, revealing the legislative intent, policy and history of the rule or doctrine” [12]. Similarly, the classical works of legal scholars on law of torts and administrative law are example of doctrinal legal research” [13]. These types of research are also called as traditional research or arm chair research. Mostly this types of research is carried only by the judges, lawyer and law teachers and legal research scholars. The legal academic has been always success through measured within a doctrinal methodology framework. It includes the tracing of legal precedent and legislative interpretation. The doctrinal research has always included an interdisciplinary aspect. However, the doctrinal research involves a critical conceptual analysis of all relevant legislation and case law to reveal a statement of the law relevant to the matter under investigation. It also the critique conceptual analysis is based on an understanding of the rules of precedent between the court jurisdictions and the rule of the statutory interpretation. Even the tacit discipline knowledge such as the difference between a civil and criminal jurisdiction. The various tests of liability along with the acknowledged reasoning methods borrowed from philosophy and logic such as induction and deduction. Similarly, the doctrinal method relate to law’s discipline paradigm. The doctrinal method has been widely criticised, largely because of has never been explicated sufficiently for Non- lawyer or for lawyers themselves. It pertained to note here that whatever in the literature it is called as doctrinal research.

(^7) supra Note 2 (^8) supra Note 2 at 148 (^9) See, S.N.Jain, doctrinal research and Non-doctrinal Legal research, Reprinted from 17 journal of the Indian Law Institute, (1975). (^10) Dr. S.R. Myneni, Legal Research Methodology, published by Allahabad Law Agency, Faridabad, 2014, at (^11) supra Note 8 (^12) supra Note 11 (^13) See, supra Note 12

Probably, these types of research are restricted itself, because it is analysis of the textual law with reference to case law and doctrine. Therefore, it is very difficult this types of research because it is not interdisciplinary. According to this doctrinal research methodology it does not make use of qualitative and quantitative legal research tools because it give a broader perspective to the dimension of law while linking to the society which after all law are regulates. Many researchers were observed that the Law remain as a social phenomenon. Therefore, the legal research has traditionally been concerned with the development of legal doctrine. Such as the laws, a regulation, ruling and law case has been used in the research. The doctrinal research has been associated with diverse activities for codification and law reporting etc... However, the doctrinal research has also play very important role in the research development and functioning of legal systems because it has produced much research of outstanding quality.

3. Sources of doctrinal Research The ordinarily conventional legal source is used in doctrinal research, and hardly the research scholar is undertaking only doctrinal research to take in secondary data relevant to his proposition. The research scholar is used the following sources like statutes or enactment, report committees, legal history and judgment etc. Most of the doctrinal research sources are text books, periodicals, and commentaries but they are not possess as much authority as the original sources like enactment and case published by authorized publisher. Similarly, the acts passed by state legislatures and parliament fall under the category of precedents. But all case laws decided by Supreme Court and high courts which are binding of lower courts are also part of doctrinal research sources. Therefore, “the quality of doctrinal research depends upon the sources materials on which the researcher depends upon for his study” [14]. 4. Characterise of doctrinal research method. The doctrinal legal research method involves an analysis of legal propositions or legal concept is the main base of the studies. These types of research used “the reports of appellate courts and conventional legal theory” [15]^ as sources of data. However, the legal propositions from enactments, administrative rules and regulation, cases law of courts etc can be a part of doctrinal legal research. The legal concepts and principles of all types’ cases, statute and rules are used in the doctrinal legal research. Most of the cases the reaches scholar, lawyers and law teachers are focuses on the legal data gathered from case laws, legislation, law journal and article, law reforms reports, parliamentary materials, policy documents, relevant text law books etc. The doctrinal legal research means the research into law and legal concepts and it is also based on the theoretical and pure in the nature. The doctrinal legal research is closely linked with the doctrine of precedent. The term of doctrine means the synthesis of various rules, principles, norms, interpretive

(^14) Dr. S.R. Myneni, Legal Research Methodology, published by Allahabad Law Agency, Haryanna, 5th^ Edition 2005, India,at 40 (^15) Ibid

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Doctrinal legal research method a guiding principle in reforming the law and legal system towards the

research development