Conceptual and Empirical Research

In one line

Conceptual research works on ideas and empirical research works on observations, and the distinction matters in law because the discipline's oldest habit is to treat a well-argued idea as though it were a finding.

In the wording a student can write in an exam: conceptual research is concerned with abstract ideas, concepts and theories, and proceeds by reasoning about them, defining, distinguishing, classifying and criticising; empirical research is concerned with data derived from observation or experience and proceeds by collecting and analysing that data to reach conclusions capable of being verified by others; the distinction is between reasoning about the meaning of a thing and finding out what is the case about it.

Conceptual research

What it works on. Ideas: a right, a duty, a legal person, a standard, justice, access, competence.

How it proceeds. By defining, distinguishing, classifying, testing an idea against cases and counter-cases, and exposing what it assumes.

What it produces. Clarity, distinctions, classifications, and sometimes a theory.

Its examples in this book. Chapter 460's definition of clinical legal education and its distinction from internship and from legal aid; chapter 650's separation of legal literacy from legal aid and legal education; and chapter 340's four purposes of an examination, which is a classification.

Its strength. Almost nothing else is capable of resolving a confusion, and a great many practical disputes turn out to be conceptual ones.

Its weakness. It cannot tell you what is happening, and it is entirely possible to produce a beautiful conceptual scheme that no institution behaves according to.

Empirical research

What it works on. Observations: counts, records, what people said, what was seen.

How it proceeds. By defining a population, collecting data by a stated method, and analysing it.

What it produces. Findings capable of being checked by somebody who repeats the work.

Its examples in this book. Chapters 690 and 700 entirely.

Its strength. It is the only route to knowing what is the case.

Its weakness. It cannot resolve the meaning of the concepts it uses. A study counting whether an accused was informed of the right must first decide what counts as being informed, and that decision is conceptual.

Why the pair matters in law particularly

Because the discipline is trained in argument. A lawyer's professional skill is to reason persuasively from authority, and that skill transfers to research as a habit of treating a well-argued proposition as though it were established.

The symptom to look for in one's own draft. A sentence saying that a rule is widely ignored, or that awareness is low, or that clinics exist only on paper, with no source. Each of those is an empirical claim, and this book has taken care to attach one to a provision or a source every time it makes one.