Doctrinal Research: Merits and Demerits
Chapter Eighty-Eight
Syllabus topic 5, "Research Methods"
Pages 323 to 325 of 543
In one line
Doctrinal research is precise, cheap, checkable and the foundation of every other kind, and it cannot tell you a single thing about what actually happens.
In the wording a student can write in an exam: the merits of doctrinal research are that it establishes the authoritative legal position, is precise and checkable against sources, requires no fieldwork and little cost, produces results of direct professional use, and supplies the conceptual foundation on which empirical work must rest; its demerits are that it studies the law as stated rather than as it operates, cannot detect a gap between rule and practice, tends to accept the legal system's own assumptions, is inaccessible to non-lawyers, and can be indefinitely elaborated without adding to knowledge.
Merits
It establishes the authoritative position. No other method can say what the law is, because the law is not a matter of observation. That is chapter 770's point and it makes doctrinal work indispensable rather than merely useful.
It is precise. A proposition attached to a section and a case can be stated exactly, and a reader can verify it in minutes.
It is checkable. The sources are public, so any reader can follow the reasoning and disagree with it on the same material. Empirical work is far harder to check, chapter 870.
It is cheap and fast. No sample, no fieldwork, no permissions, no travel. A student with a library and a database can do serious doctrinal work in a term.
It is of direct professional use. The practitioner, the judge and the draftsman all need exactly this, chapter 770.
And it is the foundation of everything else. Every empirical study rests on definitions taken from the law, chapter 830, and every reform proposal must know what would have to be amended.
Demerits
It studies the law as stated, not as it operates. This is the criticism that matters and it should be stated first. A perfect doctrinal account of the right to free legal services, chapter 630, is entirely compatible with the right reaching almost nobody.
It cannot detect the gap. Not merely does it not measure the gap; it cannot see that there is one, because nothing in the sources reports on their own effect.
It tends to accept the system's own assumptions. The sources are produced by the legal system, so research confined to them adopts the categories, the priorities and the self-image of that system. A study of legal aid confined to the Act and the judgments will conclude that India has an admirable legal aid system, and that conclusion is true of the documents.
It is inaccessible. Its product is written for lawyers, in the vocabulary of the sources, and it is of no use to the people the law is about.
Doctrinal Research: Merits and Demerits
It can be elaborated indefinitely. There is always another distinction to be drawn and another case to be reconciled, and a great deal of doctrinal writing adds refinement without adding knowledge. Chapter 760's test applies: could this be answered by reading and reporting?
And it can be silently out of date, because a text that has been amended does not announce it, chapter 950.
The criticism stated at full strength
Doctrinal work answers the question the legal system asks about itself. What is the rule; how do these authorities fit; what follows. Those are the questions a court needs answered.
They are not the questions a citizen has. A citizen asks whether the rule will help them, how long it takes, what it costs and whether anybody will listen. None of those can be answered from the sources.
And they are not the questions a reformer has. Chapter 740: reform needs a cause, and a cause is a fact about the world.
So the honest position is that doctrinal research is necessary and insufficient, and a candidate who says exactly that, and then says what it must be combined with, has given the answer this topic wants.
What doctrinal research should be combined with
Empirical work, chapter 860, to establish operation.
Comparative work, chapter 880, to see what the rule might have been.
Historical work, chapter 890, to see why it is as it is.
And critical work, chapter 900, to evaluate it against a named standard.
MU's own Semester IV requirement points the same way, since it requires an interdisciplinary project alongside the dissertation, chapter 120.
Distinctions
| What doctrinal research can do | What it cannot do | |
|---|---|---|
| The rule | State it authoritatively | Say whether it is followed |
| Conflict | Show that two authorities disagree | Say which is applied in practice |
| Change | Identify what would have to be amended | Say whether amendment would work |
| Standards | Supply the legal standard | Measure performance against it |
| Cost | Very low | It has no fieldwork to be costly |
A worked example
Take the proposition established at chapter 630.
Doctrinally. A magistrate before whom an accused is first produced must inform them of the right to free legal services at State cost; the duty arises at first production and every remand; the State cannot plead financial or administrative inability; and a trial conducted in breach is vitiated. Every limb is attached to a decision, dated and checkable. This is doctrinal research done well, and it took an afternoon.
Now ask five questions. Does it happen? In what proportion of cases? What is said, and by whom? Does the accused understand? And if it does not happen, what is the reason?
Doctrinal Research: Merits and Demerits
Doctrinal method can answer none of the five, and no amount of further reading will change that, because the answers are not in any text.
And notice the trap for a student. It is entirely possible to write a hundred and fifty pages of accurate doctrinal work on this subject, conclude that India has a strong constitutional right to legal aid, and be describing something that is not happening. That is the demerit of doctrinal research in one sentence, and it is why MU marks a dissertation on the proving of a hypothesis rather than on the accuracy of an account.
Quick revision
Merits: establishes the authoritative position, which no other method can; precise; checkable against public sources; cheap and fast; of direct professional use; and the foundation of every other method.
Demerits: studies the law as stated, not as it operates; cannot detect a gap between rule and practice; accepts the legal system's own assumptions and categories; is inaccessible to non-lawyers; can be elaborated indefinitely without adding knowledge; and can be silently out of date.
The criticism at full strength: it answers the questions the legal system asks about itself, not the questions a citizen or a reformer has.
The honest position: necessary and insufficient, to be combined with empirical, comparative, historical and critical work.
Test yourself
1. Give four merits of doctrinal research. It establishes the authoritative legal position, which no other method can, since law is not a matter of observation; it is precise and can be verified against public sources; it is cheap and fast, requiring no fieldwork; and it supplies the conceptual and legal foundation on which empirical work and reform proposals must rest.
2. State its strongest demerit and explain why it is more than a limitation. That it studies the law as stated rather than as it operates. It is more than a limitation because doctrinal method cannot even detect that a gap exists: nothing in the sources reports on their own effect, so a perfect account of a right is entirely compatible with that right reaching almost nobody.
3. Why does doctrinal research tend to accept the legal system's assumptions? Because its sources are produced by the legal system itself, so research confined to them adopts that system's categories, priorities and self-image. A study of legal aid confined to the Act and the judgments will conclude that India has an admirable legal aid system, which is true of the documents.
4. What is the honest position to take in an answer, and what should follow it? That doctrinal research is necessary and insufficient. It should be followed by saying what it must be combined with: empirical work to establish operation, comparative work to see what the rule might have been, historical work to see why it is as it is, and critical work to evaluate it against a named standard.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.