Doctrinal Research
Chapter Eighty-Seven
Syllabus topic 5, "Research Methods"
Pages 320 to 322 of 543
In one line
Doctrinal research is research in the law itself: you find the sources, read them, work out what they mean together, and state the position, and it is the method every lawyer uses every day.
In the wording a student can write in an exam: doctrinal or traditional legal research is research into legal propositions and doctrines, conducted by locating and analysing the primary sources of law, namely statutes, subordinate legislation and judicial decisions, together with secondary sources such as commentaries and journals, in order to ascertain, systematise and evaluate the law on a given question; it is library based, requires no fieldwork, and asks what the law is rather than how it operates.
The name, and what it means
Doctrine here means the body of legal rules and principles, so doctrinal research is research into the rules themselves.
It is also called traditional, black letter or library based research, and a candidate may use any of those.
Its subject is the law as a system of propositions, which is why chapter 770's point matters: the sources are authoritative texts, and the research is largely an exercise in reading them correctly.
The six steps
One: state the question precisely. Not the law of legal aid, but whether a magistrate is obliged to inform an accused of the right to free legal services at the stage of remand.
Two: identify the sources. Which Act, which sections, which rules or regulations, which decisions, and whether the Constitution is engaged. Chapters 920 and 930.
Three: find them, in their current form. Locate the Act as amended, the commencement, the rules and the judgments. Chapter 940.
Four: check that they are current. Whether the section has been amended or omitted, whether the case has been overruled or distinguished, whether the rule has been superseded. Chapter 950, and this is the step most often skipped.
Five: read and analyse. Take the provision apart clause by clause; identify the ratio of each judgment; place the decisions in order; and reconcile or expose the conflict.
Six: state the position, with its uncertainties. Say what the law is, say where it is unclear, and say what a court has not yet decided.
A seventh, where the objective goes beyond ascertainment. Criticise: show what the rule assumes, where it is inconsistent, and against what standard it fails. Chapters 780 and 900.
What it looks like when done properly
Every proposition is attached to a source, and the source is cited exactly enough for a reader to find it.
The hierarchy is respected. A Supreme Court decision governs a High Court one, a statute governs a rule made under it, and a later amendment governs an earlier text.
Doctrinal Research
Conflicts are shown rather than smoothed. Where two decisions disagree, the disagreement is stated, not resolved by choosing the more convenient one silently.
Dates are given, because the law changes and a proposition without a date may be about the past.
And the reader can check every step. Which is chapter 790's whole standard.
The commonest mistakes
Working from a summary. A textbook, a coaching note or a website is a route to the source and not the source. This is the mistake that produces most wrong propositions in student work.
Using an unamended text. Chapter 770: a researcher working from an unamended Act has researched a different rule.
Citing a case for what it is famous for rather than what it held. A judgment is authority for its ratio, and headnote reading is how a case gets attached to a proposition it does not support.
Ignoring subordinate legislation. This book has met that twice: almost everything about how legal aid is obtained is in the 2010 Regulations, chapter 590, and almost everything about legal education is in the Rules of Legal Education 2008, chapter 130. A researcher who reads only the Act has read the smaller half.
And stopping at the Indian sources when the question is comparative, chapter 880.
A worked example, carried through the six steps
Step one, the question. Is a college legal aid clinic subject to the same requirements as a village legal services clinic?
Step two, the sources. The Legal Services Authorities Act 1987 for the framework; the NALSA (Legal Services Clinics) Regulations 2011 for the clinics; and the Rules of Legal Education 2008 for the college side.
Step three, find them. The Act and the Regulations from India Code; the Rules likewise, chapter 940.
Step four, check. The Act commenced on 9 November 1995 and was amended by Act 59 of 1994 before commencement, chapter 550; the 2011 Regulations were amended in 2014, which the printed footnotes show.
Step five, read. Regulation 22 provides that the Regulations apply mutatis mutandis to student legal services clinics set up by law colleges and law universities; regulation 3 already directs the District Authority to establish clinics in educational institutions; regulation 24 deals with clinics attached to law colleges. Chapter 510.
Step six, state the position. Yes, with the necessary changes, and the college clinic is inside the statutory scheme rather than beside it. And state the uncertainty: what the necessary changes are is not spelt out, so which of regulations 5 to 21 apply in full to a student clinic is a question the instrument leaves open.
That last sentence is what distinguishes a good doctrinal answer from a summary, and it is also, incidentally, a research question somebody could take up.
Doctrinal Research
Quick revision
Doctrinal research, also called traditional, black letter or library based, is research into legal propositions using primary sources, statutes, subordinate legislation and judicial decisions, with secondary sources as routes to them, to ascertain, systematise and evaluate the law.
Six steps: state the question precisely; identify the sources; find them in current form; check that they are current; read and analyse, taking provisions apart and identifying ratios; and state the position with its uncertainties. A seventh step criticises.
Done properly: every proposition attached to a source; hierarchy respected; conflicts shown; dates given; every step checkable.
Commonest mistakes: working from a summary; using an unamended text; citing a case for its reputation rather than its ratio; ignoring subordinate legislation; and staying with Indian sources on a comparative question.
Test yourself
1. Define doctrinal research and name its other titles. Research into legal propositions and doctrines, conducted by locating and analysing statutes, subordinate legislation and judicial decisions together with secondary sources, in order to ascertain, systematise and evaluate the law on a question. It is also called traditional, black letter or library based research.
2. Set out its six steps. State the question precisely; identify the sources engaged; find them in their current form; check that they are current, whether the provision has been amended and whether the case is still good law; read and analyse, taking provisions apart and identifying the ratio of each decision; and state the position together with its uncertainties.
3. Which step is most often skipped, and what is the consequence? Checking that the sources are current. The consequence is that the researcher states a rule that has been amended or a case that has been overruled, so the whole of the work that follows is about a different legal position.
4. Why is ignoring subordinate legislation a serious error in Indian legal research? Because in many fields the operative detail is in rules and regulations rather than in the Act. Almost everything about how a person obtains legal aid is in the NALSA Regulations of 2010, and almost everything about the standards of legal education is in the Rules of Legal Education 2008, so a researcher who reads only the parent Act has read the smaller half.
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.