What Legal Research Is
Chapter Eighty
Syllabus topic 5, "Research Methods"
Pages 299 to 301 of 543
In one line
Legal research is research whose subject is the law, and it is unlike research in most other fields because its primary sources are texts that are authoritative rather than evidence that is merely true.
In the wording a student can write in an exam: legal research is the systematic investigation of legal problems, comprising the ascertainment of the law on a point, the analysis and critical examination of legal rules and institutions, the comparison of legal systems, the historical study of legal development, and the empirical study of the operation of law in society; it differs from research in the natural and social sciences in that its principal primary sources, statutes and judgments, are authoritative texts whose meaning is the object of study, rather than observations of the world.
The distinguishing feature
In most fields a primary source is an observation. A measurement, a specimen, a record of what happened.
In law the principal primary sources are texts with authority. A section of an Act is not evidence of the law; it is the law. A judgment is not a report of a decision; it is the decision.
Three consequences follow, and they run through the whole module.
One: accuracy of the text matters absolutely. A researcher who works from an unamended copy of an Act has not made a small error; they have researched a different rule. Chapter 950 is about exactly this.
Two: interpretation is part of the method. In a field where the source is a text, working out what it means is not preliminary to the research but a large part of it.
Three: authority has a hierarchy. A Supreme Court decision is not merely better evidence than a High Court decision; it binds. No other discipline has sources arranged by rank.
The five kinds of legal research
Ascertaining the law. Finding and stating the position on a point. This is what most professional legal research is, and it is the least of the five academically because the answer exists.
Analytical and critical. Taking a rule apart, showing what it assumes, where it is inconsistent, and whether it is defensible. Chapter 900.
Comparative. Setting the rule beside another system's answer to the same problem. Chapter 880.
Historical. Asking how the rule came to be, which often explains why it is as it is. Chapter 890.
And empirical. Asking what actually happens under the rule. Chapters 860 and 680.
A dissertation usually combines them, and MU's Semester IV project is expressly interdisciplinary, chapter 910.
Who does legal research, and why
The practitioner, to advise a client or argue a case. Their question is narrow, their deadline is short and their standard is that the answer must be right, not that it must be new.
What Legal Research Is
The judge, to decide, with the parties' research and the court's own.
The legislator and the draftsman, to know what the existing law does before changing it.
The law reform body, chapter 720.
The teacher, to teach something that is current.
And the academic researcher, whose question need not serve any of the above and whose standard is that the answer must be new.
Where the reader sits. The LL.M. student is being trained as the last of these, chapter 120, and is examined by producing a piece of it.
What makes legal research difficult in India specifically
The law changes constantly and the record is scattered. An Act, its amendments, the commencement notifications, the rules, the regulations and the circulars may sit in six places, chapter 940.
Copies are unreliable. A text found on a website may be unamended, may be another State's, or may be a summary presented as the source. This is not a hypothetical caution: this book's own authority folder records that India Code moved platform and that the routes an earlier tool used all now return nothing.
Judgments are enormously numerous and only a small proportion matter for any question, so the skill is exclusion rather than collection.
Empirical material is largely absent, chapter 740, which is an obstacle and also the opportunity for a student.
And access is unequal. A student with a database subscription can do in an afternoon what a student without one cannot do at all, which chapter 940 addresses by teaching the free sources.
A worked example
One question, approached as each of the five kinds.
The question. Whether a magistrate must inform an accused of the right to free legal services.
Ascertaining the law. Read Khatri and Suk Das, chapter 630, and state the position. Answer: yes, at first production and every remand, and failure vitiates the trial.
Analytical. Ask what the duty assumes: that the magistrate has time, that the accused understands, that a lawyer is available to be assigned, and that somebody would know if it were not done.
Comparative. Ask how other systems secure the same thing, and whether they use a form, a duty counsel or a recording.
Historical. Trace it from Article 39A in 1976 through Hoskot, Hussainara Khatoon and Khatri, chapter 550, and notice that the right existed for fifteen years before the machinery did.
Empirical. Sit in the remand court for six weeks and count, chapter 690.
Five methods, one question, five different kinds of answer, and only the last of them tells you whether the right is real.
Quick revision
Legal research is the systematic investigation of legal problems: ascertaining the law, analysing and criticising it, comparing systems, studying its history, and studying its operation empirically.
What Legal Research Is
Its distinguishing feature: its primary sources are authoritative texts, not observations. Hence accuracy of the text is absolute, interpretation is part of the method, and sources are ranked by authority.
Who does it: the practitioner, whose answer must be right; the judge; the draftsman; the law reform body; the teacher; and the academic, whose answer must be new. The LL.M. student is trained as the last.
Indian difficulties: constant change and a scattered record; unreliable copies; an enormous volume of judgments, so the skill is exclusion; almost no empirical material, which is also the opportunity; and unequal access.
Test yourself
1. What is the distinguishing feature of legal research, and give two consequences. That its principal primary sources are authoritative texts, statutes and judgments, whose meaning is the object of study, rather than observations of the world. It follows that the accuracy of the text is absolute, since working from an unamended Act means researching a different rule, and that interpretation is part of the method rather than preliminary to it.
2. Name the five kinds of legal research. Ascertaining the law on a point; analytical and critical study of rules and institutions; comparative study of other systems; historical study of legal development; and empirical study of how the law operates.
3. How does the standard differ between a practitioner's research and an academic's? The practitioner's answer must be right and need not be new, since the client needs the correct current position. The academic researcher's answer must be new, since the purpose is to add to knowledge.
4. Give two features of the Indian legal materials that make research here difficult. The record is scattered, so an Act, its amendments, commencement notifications, rules, regulations and circulars may sit in six different places; and copies are unreliable, since a text found online may be unamended, may belong to another State, or may be a summary presented as the source.
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.