Documente Academic
Documente Profesional
Documente Cultură
Sanjeyvignesh.J,
Page 1 of 41
INTRODUCTION
*******
Page 2 of 41
WHAT IS RESEARCH?
The acquisition of knowledge is the mission of research, the
transmission of knowledge is the mission of teaching, and the application of
knowledge is the mission of public service. James A Stafford.
Research is combination of two words Re + Search which means the
repetition of search. According to plutchick Research means to go around as
to explore. Research is the process of collection of evidence or information
for ascertaining an assumption or verifying some hypothesis1.
John W Best has rightly said The secret of our cultural development
has been research, pushing back the areas of ignorance by discovering new
truth, which, in turn, leads to better ways of doing things and better
products.
DEFINITIONS:
The Websters international dictionary defines research as a careful
inquiry or examination in seeking fact or principles; diligent investigation
in order to ascertain something.
In the words of Francis Bacon, Research is a power of suspending
judgment with patience of mediating, with pleasure of asserting with
caution, of correcting with readiness and of arranging thought with
scrupulous plan.
Page 3 of 41
OBJECTIVES OF RESEARCH:
Right from the evolution of human society, intellectuals of the
society are always inclined to probe for facts of the empirical world and to
reveal the truth, Every aspect of human behaviours or facts of life has a
problem. In 'society there were problems, there are problems and there will
be problems, we have to find out answer to those problems. Hence this is
the requirement of the society to conduct research2.
1. Legal Education and Research Methodology by Dr. Mono Purohit, Central Law
Publications
2. Khan, J.A. 2007 P-1
Page 4 of 41
Historical Research,
Doctrinal Research (or) Traditional Research,
Non-Doctrinal (or) Socio-Legal (or) Empirical Research,
Comparative Research,
Induction and Deduction Research,
Other Kinds of Research,
Case Law Analysis,
Oral Advocacy.
Page 5 of 41
Page 6 of 41
longer so justifiable because the reasons that justified the original inclusion
of that provision are no longer valid. Historical research reveals the reasons,
which might otherwise remain obscure.
Finally, on more general level, when the history of a particular idea
which has been given a concrete shape in the law is studied in depth, it
shows the gradual evolution of the law on certain lines, thus showing the
general trend of change. It is true that some jurists fight shy of history3.
Jeremy Bentham stated we are told, had scant respect for history
and contributed little to an understanding of legal and social change in a
continuum.
But it is now well recognised that in many cases there is certain logic
in the way in which the law evolves, even though, in some other cases, one
may, no doubt, find that the law had in the past developed rather on
haphazard lines.
Of course, when one speaks of historical research, one is not
confined to pure law. Even though the material directly under study may be
legal, that is to say, the source to be consulted may be a traditional legal
source, the factual material that comes to light and the knowledge of ideas
gathered from such a source, may often have an interest that transcends the
exclusively legal field. In fact, social and legal factors cannot be always
reduced to water tight compartments. Any adequate appraisal of the precise
nature and rate of change in a particular country must also pay special
attention to the effect of relevant physical, demographic, technological and
ideological variables4.
3. Sir William Holdsworth, A History of English Law,
Vol. XIII at 125 (1966 reprint).
4. Edward.S.Crowin, The Constitution and What it means Today,
Preface at V (12th Edition, 1958)
Page 7 of 41
Sanjeyvignesh.J,
Here
the
legal
researcher
sometimes
feels
handicap.
Page 8 of 41
Page 9 of 41
Sanjeyvignesh.J,
They
have
primary
authority.
Text
books,
periodicals,
commentaries also come under sources of doctrinal research but they are not
as authentic as original sources like enactment and case published by
authorised publisher.
Suitable examples and case laws:
This kind of research is carried on by all the Judges, Lawyers and Law
teachers.
The two most important examples of traditional research are the Law
of Torts and Administrative law. These two areas of law have
been
Page 10 of 41
As the latest decision of the Supreme Court on the point, Gian Kaur
v. State of Punjab10, lays down, life is considered the most precious
commodity and every effort has to be made to preserve it. The Court, in the
instant case, made it clear that the right to life, including the right to live
with human dignity would mean the existence of such right upto the end of
Page 11 of 41
natural life. This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. The Supreme Court also
reversed its earlier judgement in the Rathinam Case11 and held that the right
to life does not include a right to die.
Commenting on Administrative Law, Grundstein has observed:
The creation of a body of law where none had hitherto existed is a
social achievement. It is to be an achievement not to be underestimated. It
also serves as a reminder that at particular periods in the history of law the
creative working out of legal doctrine both necessary and critical and
justifiably a paramount concern of legal research12.
Apart from this our statutory law, is replace with such phrases or
Vocabularies which have no definite answer for all situations. The Courts
have been given the discretion to interpret and apply them so as to sub serve
the social need, e.g., just and equitable, `public order, reasonable
Opportunity of being heard, reasons to believe, rash or negligence act,
reasonable apprehension, industry, etc. while interpreting these phrases
the judiciary itself has evolved certain norms which are vague and flexible 13.
Which can be made certain and workable by evolving principle on the basis
of research.
Ours is a welfare society is to adjust the conflicting interest of
various components of the society by applying the principle of "reasonable
classification. But what is a reasonable classification is in itself a matter of
discussion and debate. Here the researcher can find out as to what standard
can be termed as reasonable classification- Likewise, as to what can
precisely be termed as basic structure of the Constitution is not clear. It can
be determined by making a thorough enquiry into it. The task of a doctrinal
researcher is not a purely mechanical one.
10. (1996) 2 SCC 448.
11. (1994) 3 SCC 394.
12. N.D.Grundstein: Administrative Law and the Behavioural and Management Sciences,
17th Journal of Legal Education 122 (1964 65)
13. S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487 (1972)
Page 12 of 41
14
Page 13 of 41
The Court has also recognized the right to die and hence an attempt
to commit suicide is more an offence. Although in a recent judgment in
Gyan Kaur v. State of Punjab and others, the Supreme Court has reversed
this judgment and has held that the attempt to commit suicide is a
punishable offence.
Most of the works of doctrinal researchers result in some concrete
proposals for problems in hand, but sometimes, it fails, especially when the
subject is growing very fast or when the research was undertaken merely to
test the logical consistency and technical soundness of a proposition.
Essential characteristics of doctrinal research:
1. This type of research involves analysis of legal proposition or legal
concept.
2. Legal propositions from enactments, administrative rules or
regulations, cases of courts can be a part of doctrinal research.
3. Conventional sources of data are used.
Doctrinal research looks at the following issue.
a. The aim of preferred values.
b. The problems posed by the gap between the policy goal and the
present state of achievement.
c. Availability of attentive choice for the implementation of goals.
d. The prediction and consequences that were made.
Basic tools of Traditional Researcher:
The basic tools of a doctrinal legal researcher are:
1.
2.
3.
4.
Statutory materials,
Case reports,
Standard textbooks and reference books,
Legal periodicals,
Page 14 of 41
Sanjeyvignesh.J,
research
is
fact
oriented.
Legal
researcher
Page 15 of 41
Sociology of Law:
From where does a doctrinal researcher get his social policy, social
facts and social values? The answer is his own experience, observation,
reflection and study of what others have done before him in a similar or
same kind of situation. However, it will certainty add value to his research if
he gets an opportunity to test his ideas by sociological data. In other words,
the sociology of law tries to investigate through Empirical Data how law
and legal institutions affect human attitudes and what impact on society they
create. The sociology of law also concerns itself with the identification and
creating an awareness of the new problems which need to be tackled
through law.
Just as a matter of semantics, the author will use the term sociology
of law (or) Socio-Legal where the major tools of a legal researcher are
empirical and sociological data. This is to be distinguished from
sociological jurisprudence and, as stated earlier, a doctrinal researcher has to
be but a sociological jurist because of the wide discretion available to him in
modern times to make his value choices.
Page 16 of 41
Page 17 of 41
Page 18 of 41
solutions to certain problems. For instance, there has been the perennial
problem of governmental control of business or non- governmental control.
private enterprise or public enterprise (or efficiency or inefficiency of the
one or the other), and individual liberty or governmental power; We may not
be able to answer these questions basic to any society through scientific
study.
Kelsen Says: The issue between liberalism and socialism, for
instance, is, in great part, not really an issue over the aim of society, but
rather one as to the correct way of achieving a goal as to which men are by
and large in agreement, and this issue cannot be scientifically determined, at
least not today.28
Sixthly, though law-sociology research is of recent origin, yet it is
common knowledge that even in the United States, where this kind of work
has been done mostly, such researches have yet to show their potentiality in
terms of translating the findings into legal propositions and norms. Amongst
others, one reason may have been the failure to select subjects with such
potentialities. Any information has some value, but when huge resources are
to be staked in collecting sociological data it may be better to use them on
carefully planned subjects where the research may lead to ultimate
improvement of the contents of the law. Thus, with regard to decisionmaking research, Davis observes:
Research on decision-making excites many people, including
Professor Grundstein, and the quantity of such research is voluminous even
staggering. A single-bibliography on decision-making research fills a sizable
volume.29
He further says:
The down-to-earth Behavioral Research Council concludes as to
decision-making research: The major result in the field, to date, has been
the development of a variety of theories, the testing of which has only begun
.... Little can be said about the usefulness of the field until the testing (and in
Page 19 of 41
some instances the stating of the theories in testable form) has been
accomplished.30
It lays down a different and lesser emphasis upon legal doctrines and
II.
III.
concepts,
It seeks answers to a variety of broader questions,
It is not anchored exclusively to appellate case reports and other
IV.
Basic Tools:
1. There are several ways of collecting empirical data for social-legal
research. The required information can be collected from the
identified respondents in a face-to-face interaction by administrating
them a set pre-determined question or through sketchy questions
prepared by the respondent. These methods of data collection are
known as interview and schedule respectively.
2. The pre-determined questions can also be administered to the
respondents indirectly through post, fax, emails or any other
appropriate methods of communication. This method of data
collection is known as questionnaire.
3. A socio-legal researcher can also collect the required information by
systematic observation of a phenomenon, behavior of his
respondents or institutions that constitute focus of his study or by
studying other existing records that reflect the phenomenon under
his inquiry.
Page 20 of 41
Interview,
Questionnaire,
Schedule,
Interview guide,
Observation, participant or non-participant, and
Published or unpublished materials (such as Census Reports, Reports of
Governmental and/or Non-Governmental Agencies, and appropriate literature on
sociology of law).32
Page 21 of 41
Sanjeyvignesh.J,
35
electronic contracts in the United States and the European Union. Another
example is found in Pure Economic Loss in Europe where a group of
researchers took a painstaking task of comparing laws governing pure
economic loss in 13 different legal systems across the European Union. 36
33. Walker, 1981
34. Palmer, 2005
35. Kierkegaard, (2007) in E-Contract Formation: U.S. and E.U. Perspective
36. Pure Economic Loss in Europe, Bussani and Palmer, 2003
Page 22 of 41
Sanjeyvignesh.J,
Page 23 of 41
Sanjeyvignesh.J,
1)
2)
3) Conclusion
Page 24 of 41
Page 25 of 41
Page 26 of 41
Page 27 of 41
(1) A statement of the significant facts of the dispute before the court
the facts that are necessary to an understanding of the dispute and of
the courts decision, those that influenced the courts reasoning and
decision.
(2) A statement of a relevant procedural details such as the explanation
of the legal nature of the controversy and of the remedy sought,. The
actions and the ruling of the lower court.
(3) A statement of narrow legal question or issue(s) that the appellate
court was asked to resolve.
(4) A brief statement of the Appellate Courts decision, both procedural
and substantive.
Page 28 of 41
States knows how long books are detained by officers of each State
during assessment proceedings.... The harassment to traders is quite
obvious and needs no exaggeration.
In Jyoti Pershad v. Union Territory of Delhi, 43 the Supreme Court observed:
Page 29 of 41
The criteria for determining the degree of restriction on the right to hold
property which would be considered reasonable, are by no means fixed or
static, but must obviously vary from age to age and be related to the
adjustments necessary to solve the problems which communities face from
time to time.... lf law failed to take account of unusual situations of pressing
urgency arising in the country, and of the social urges generated by the
patterns of thought-evolution and of social consciousness which we witness
in the second half of this century, it would have to be written down as
having failed in the very purpose of its existence.... In the construction of
such laws and particularly in judging of their validity the Courts have
necessarily to approach it from the point of view of furthering the social
interest which it is the purpose of the legislation to promote, for the courts
are not, in these matters, functioning as it were in vacuo, but as parts of a
society which is trying, by enacted law, to solve its problems and achieve
social concord and peaceful adjustment and thus furthering the ,moral and
material progress of the community as a whole.
In the famous Golak Nath v. State of Punjab, 44 Subba Rao, C.J., said:
But, having regard to the past history of our country. it could not
implicitly believe the representatives of the people, for uncontrolled and
unrestricted power might lead to an authoritarian State lt. therefore,
preserves the natural rights against the State encroachment and constitutes
the higher judiciary of the State as the sentinel of the said rights and the
balancing wheel between the rights, subject to social control.
The courts concern with social justice is depicted forcefully in following
observations of Bhagwati, J., in Kanwarlal v. Amarnath45
This produces anti-democratic effects in that a political party or
individual backed by the affluent and wealthy would be able to secure a
greater representation than a political party in or individual who is
without any links with affluence or wealth. This
43. AIR 1961 SC 1602
44. AIR 1967 SC 1643
Page 30 of 41
Page 31 of 41
Appellate judges always say that they dont want us to talk about the
facts and they dont want us to make emotional arguments?
ANSWER TO FAQ:
Sure they say that. They learned that in the same law school classes
we did. But judges are notoriously unaware of what persuades them. And
judges, like everyone else, are persuaded by factual arguments with honest
emotional impact. Remember, every time we lose a case on harmless
error or no preservation grounds, the court is really telling us that
regardless of the legal issues, they dont think it is fair to reverse our clients
conviction. We win a lot more cases when we convince the court that
reversing is the fair thing to do. And fairness is a factual and emotional
argument -- not a legal doctrine.
2. Components of a Successful Oral Argument
A. The First 30 Seconds -- The Most Important Part of Your Argument
The first 30 seconds of your argument will set the tone for
everything that follows. If you dont use that time to define what the case is
about, the court will jump in with questions about whatever they think is
important. Then you will be stuck spending the entire argument discussing
issues defined by the court. Even worse, if you dont immediately establish
the grounds for the argument, the court might sit quietly and wait for the
prosecution to tell them what the case is really about.
The beginning of your argument is an opportunity to define the turf
on which the entire battle will be fought. Be sure to use it that way.
1. Start by telling the court what went wrong at trial. Why was the
conviction unfair?
a. Be direct
b. Be factual
c. Be graphic
d. Be concise
Page 32 of 41
If after the first thirty seconds of your argument, the court does not
know exactly why you should win the case you have do, re-do those first
thirty seconds.
2. Dont waste time by starting your argument with empty
formalisms:
EX: My name is; my clients name is; my client was
convicted of ____; he was sentenced to ____.
B. After Your Opening, Get to the Point of Your Argument Quickly
1. Decide what is important -- you dont have to include everything
that was in your brief.
2. Address the issues you need to win.
a. Dont run away from the tough issues.
b. If preservation or harmlessness is an issue, but sure to
address it.
3. Be sure to support your legal argument with facts. Remember -- in
most cases, there is no real controversy over the law -- everyone agrees
about what the law is -- the only controversy is over how the law applies to
the facts of your case.
C. Dont Take Impossible Positions
1. If there are unpleasant facts or legal doctrines that you cant get
around, then dont destroy your credibility by taking an impossible
position.
2. Be sure to prepare your argument by deciding what law and facts
you cant avoid, and figuring out how to distinguish them.
3. Try to prepare answers in advance for the tough questions you
know you will be getting.
D. Use clear, graphic, descriptive language.
1. No legalese.
Page 33 of 41
Page 34 of 41
1. Never say, that isnt our case. The court knows this.
2. Dont be thrown off by the stupidity of the hypothetical.
3. Answer the hypothetical in a way that is consistent with winning
your case.
4. Dont be afraid to agree with the questioning judge on aspects of
the hypothetical that dont hurt your case.
5. Remember that its OK to point out that the hypothetical is based
on a faulty premise.
4. Rebuttal Argument
A. Dont use this as a game of last tag.
Only rebut if there was something in the States argument that you
believe should be answered. For example:
1. Material misstatements of fact.
2. Material misstatements of law.
3. An argument for which you have a clear, strong refutation.
4. The prosecutor falsely accuses you of misconduct.
B. Only use rebuttal on subjects that are important to the case.
C. Keep it short and focused on the prosecutors statement that you are
rebutting.
D. If possible, quote the record as the source of your rebuttal.
E. Dont personalize it.
Page 35 of 41
equal partner in the conversation. If you grovel, the court has no reason to
respect you or accept your arguments as the thoughts of an equal.
1. Be respectful, but not overly deferential.
2. Only flatter the court when they earn it.
B. ALWAYS BE HONEST AND STRAIGHTFORWARD WITH THE
COURT
1. Dont euphemize, sugar-coat or minimize the crime.
NOTE: You can minimize the impact of the crime facts by
being straight forward, but using dull language.
2. Answer all questions directly.
3. ANSWER ALL QUESTIONS HONESTLY
4. Show some class. Dont make personal attacks on the prosecutor
or trial judge.
******
Page 36 of 41
CONCLUSION
It is obvious to elucidate that Legal
Research plays very vital role in the enactment of
new statutes meant for Socio-Legal development and
enforcement and refining the society from all the
social evils. Legal research, Infact, paves way for the
students of law, the scholars, who involve and
dedicate their part in the development of new ideas
and concepts for their vital support to the legislators
to acquaint with and then to enact them as new law
for the betterment of the society and the Nation as a
whole. Through the intensive study made on the
subject, I am of the firm view that the instant
presentation would become a little source in
enlighting the study and frame work on legal research
and the New Generation to meet the new golden era
in law.
Page 37 of 41
Case Law
Referred
in Pg No.
1.
08
2.
09
3.
09
4.
10
5.
10
6.
10, 24
7.
His
Holiness
Kesavananda
Bharati
Sripadagalvaru and Ors. v. State of Kerala
and Anr.
10
8.
10
9.
10
10.
10
11.
10
12.
23
13.
23
14.
24
15.
Kanwarlal v. Amarnath
24
Page 38 of 41
Page 39 of 41
BOOKS REFERRED:
1)
2)
3)
(1966 reprint).
Edward.S.Crowin, The Constitution and What it means Today,
4)
5)
2006.
Prof (Dr.) Kushal Vibhute & Filipos Aynalem, Legal Research
6)
Methods, 2009
S.N.Jain, Doctrinal and Non-Doctrinal Legal Research, 14 J ILI 487
7)
8)
(1972)
Benjamin Cardozo, The Nature of Judicial Process, 23 (1921)
N.D.Grundstein: Administrative Law and the Behavioural and
Management Sciences, 17th Journal of Legal Education 122 (1964
9)
65)
Roscoe Pound, Jurisprudence, vol. 1-3 (St. Paul, Minn., West
10)
11)
12)
13)
1974)
Vilhelm Aubert (Ed.), Sociology of Law 9 (1969)
Upendra Baxi, Socio-Legal Research in India: A Programs rift 7
14)
15)
16)
(ICSSR, 1975)
M.P.Jain and S.N.Jain, Principles of Administrative Law 363 (1973)
Kelsen, General Theory of Law and State 7 (1961)
K.C.Davis, Behavioral Science and Administrative Law, 17 J.
17)
18)
19)
20)
21)
Perspective
Pure Economic Loss in Europe, Bussani and Palmer, 2003
Hanson, Sharon, Legal Method and Reasoning (London: Cavendish,
2003) pp. 215-268
22)
Page 40 of 41
LEXICANS REFERRED:
(1) P. Ramanatha Aiyar, Concise Law Dictionary, Wadhwa Nagpur, 3rd
Edn. (Reprint 2008.)
(2) Wharton, Concise Law Dictionary, Universal Law Publishing Co.,
15th Edn. (2009)
(3) Blacks Law Dictionary
STATUTES REFERRED:
(1) The Constitution of India
(2) The Indian Penal Code, 1860
(3) The Code of Criminal Procedure, 1973
JOURNALS REFERRED:
(1) All India Reporter (A.I.R)
(2) Supreme Court Cases (SCC)
(3) Madras Law Journal (MLJ)
WEBSITES REFERRED:
(1) www.indiakanoon.org
(2) www.lawteacher.net
(3) www.lawyersclub.com
(4) www.ebc-india.com
(5) www.chilot.wordpress.com
(6) www.aallnet.org
(7) www.law.auckland.ac.nz
(8) researchguides.library.yorku.ca
(9) www.manupatra.co.in
(10)
legalresearchprinciples.pbworks.com
(11)
sociolegaldcu.wordpress.com
Page 41 of 41
ARTICLES REFERRED:
(1) Jan BM Vranken, Methodology of Legal Doctrinal Research: A
Comment on Westerman.
(2) Narendra Man Shrestha, Importance of Legal Research Method for
Legal Professionals.
(3) Aleksander Peczenik, Legal Research and Growth of Science.
(4) Clinch, Peter (2001) Using a law library: a student's guide to legal
research skills. London, Blackstone Press. 340.07042 CLI.
(5) Finch, E. and Fafinski, S. (2011) Legal skills. Oxford, Oxford
University Press. 340.0711.
(6) A Practitioners Guide to Effective Oral Advocacy Before the
Michigan Supreme Court With Special Tips from Benjamin Franklin
By Mary Massaron Ross.
(7) Persuasive Oral Argument, Ira Mickenberg, Public Defender Trainer
and Consultant.