Non Doctrinal Research: Merits and Demerits

In one line

Non doctrinal research is the only way to know what is actually happening, and it is slow, expensive, hard to check, and easy to do so badly that its findings are worse than none.

In the wording a student can write in an exam: the merits of non doctrinal research are that it reveals the gap between law as enacted and law as it operates, identifies causes rather than symptoms, supplies the evidence on which reform proposals must rest, discovers what the researcher did not anticipate, and makes the law answerable to those it affects; its demerits are that it is expensive in time and access, requires skills legal training does not supply, produces findings limited to their sample, is much harder to verify than doctrinal work, and can mislead badly when the design is poor.

Merits

It reveals the gap. Chapter 850's criticism of doctrinal work is answered only here. The right in Khatri and Suk Das either reaches people or does not, and nothing but empirical work can say which.

It identifies causes. Chapter 740: a reform aimed at the wrong cause achieves nothing, and only investigation separates four candidate causes.

It supplies evidence that persuades. Chapter 730: a proposal must survive a ministry that has no obligation to act, and a finding is harder to refuse than an argument.

It discovers what was not anticipated. This is the merit most worth naming, and chapter 700 has the example: the Sheela Barse investigation was directed at an allegation of assault and found that there was no adequate arrangement for legal assistance to women prisoners.

It makes the law answerable to those it affects. A rule studied only through its own sources is judged by the people who made it; a rule studied empirically is judged by what it does to people.

And in India it is nearly always new, chapter 860.

Demerits

It is expensive in time. Six weeks of observation is six weeks, and it cannot be compressed.

It depends on access. A refusal by a court, a jail, a college or an authority can end a study, and there is often no remedy.

It requires skills law teaching does not supply. Sampling, instrument design, coding and analysis, chapter 320.

Its findings are limited to their sample. A study of one taluk is evidence about that taluk, chapter 1020, and the temptation to write as though it were about the country is very strong.

It is hard to verify. A reader can check a doctrinal proposition in minutes by opening the Act. Checking an empirical finding means repeating the fieldwork, which almost nobody does, so empirical claims circulate unchallenged in a way doctrinal ones do not.