Вы находитесь на странице: 1из 29

ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Dr. RASHMI


RANJAN MISHRA,HEAD OF THE DEPARTMENT OF LAW for
providing me an opportunity to do my project work in
‘’DOCTRINAL AND NON-DOCTRINAL RESEARCH’’ .

I would also like to thank all my friends for helping and


making the project successful. This acknowledgement is one
way where I can actually thank the people who have been
instrumental in the making of this project. With their help the
project was done with ease.

I would like to thank a lot of people without whose co-


operation and support working on this project would not have
been so pleasurable and interesting.

Page 1 of 29
CONTENTS
SERIAL PAGE
NUMBER
Name of the Topic NUMBER
1 INTRODUCTION 3-5
2 DOCTRINAL RESEARCH 6
2.1 CONCEPT OF DOCTRINAL RESEARCH 6-7
2.2 ESSENTIAL CHARACTERISTICS OF DOCTRINAL RESEARCH 8-9

2.3 TOOLS OF DOCTRINAL LEGAL RESEARCH 10

2.4 MERITS OF DOCTRINAL RESEARCH 11-12

2.5 DEMERITS OF DOCTRINAL RESEARCH 13-14


3 NON-DOCTRINAL RESEARCH 15
3.1 CONCEPT OF NON-DOCTRINAL RESEARCH 15-17
3.2 ESSENTIALS CHARACTERISTICS OF NON-DOCTRINAL 18-19
RESEARCH
3.3 TOOLS OF NON-DOCTRINAL RESEARCH 20

3.4 MERITS OF NON-DOCTRINAL RESEARCH 21-22


3.5 DEMERITS OF NON-DOCTRINAL RESEARCH 23-24
4 DIFFERENCES BETWEEN DOCTRINAL AND NON- 25-26
DOCTRINAL RTESEARCH
5 CONCLUSION 27-28
6 BIBLIOGRAPHY 29

Page 2 of 29
INTRODUCTION

Research is basically a scientific systematic investigation into


and study of materials and sources in order to establish facts.
The origin of the word lies in the French word “re” meaning
‘’expressing intensive force” and “cerchier” meaning “to
search”.In a general sense it can be said that research includes
gathering of data, information and facts for the advancement
of knowledge. But in a formal sense research is performing a
methodological study in order to prove a hypothesis or finding
the answer of a specific question. Research must be scientific,
systematic, objective and must follow a series of steps and a
standard protocol.1

Legal Research is a Research pertaining to law. It is the


systematic investigation of a legal fact that increases the sum of
knowledge pertaining to law. It is an addition of something to
an existing knowledge, or refute something into an
existing knowledge. Law as per legal research

1. Mona purohit; legal system and research methodology;CLP;3rd Edition 2014; Reprint 2015

Page 3 of 29
attracts judicial pronouncements, the prior stages of making
and unmaking law, historical antecedents, subsequent.2

There are different methods of research that may be applicable


in law. They can be characterized as multidisciplinary,
doctrinal, empirical or non-doctrinal research. The main two
types of legal research are:

Doctrinal Research : It is a theoretical research and it is pure


in nature. Conventional legal sources like reports of
committees, legal history, judicial pronouncements, facts
passed by legislature and parliament etc are the sources
of doctrinal legal research.

Non-Doctrinal Research:It is also known as empirical research


or socio-legal research and relies on experience and
observation. It is a trans-boundary research but its
foundation is on doctrinal research only. Non-doctrinal legal
research tries to investigate through empirical data, how law

2 .http://www.academia.edu/15065282/Doctrinal_Legal_Research

Page 4 of 29
and legal institutions affect human attitudes and what impact
on society they create.3

3.Ibid

Page 5 of 29
DOCTRINAL RESEARCH

CONCEPT OF DOCTRINAL RESEARCH:

Doctrinal research is concerned with legal prepositions and


doctrines. The sources of data are legal and appellate court
decisions.4

Doctrinal research, also called traditional research, is not


concerned with people but with documents and differs from
the non-doctrinal also called empirical research.5

The doctrinal research means a research that has been


carried out by way of analyzing the existing statutory
provisions and cases by applying the reasoning power, and that
has been carried out on a legal proposition or propositions.6

Doctrinal research involves analysis of case law, arranging,


ordering and systematizing legal propositions and study of

4.http://www.quora.com/In-methodlogy-what-is-doctrinal-research
5.Ibid
6.http://lawdessertation.blogspot.in/2015/09/doctrinal-or-non-empirical-research.html

Page 6 of 29
legal institutions through legal reasoning or rational deduction.
One of the purposes of the traditional legal research is
ascertaining a legal rule for the purpose of solving a problem.
Hence quality of doctrinal research depends upon the source
material on which the researcher depends upon for his study. 7

As the major portion of the research methodology concerns


with the identification of authoritative the sources and use of
techniques to find them out, a doctrinal researcher should
know how to use a law library. The laws on social welfare have
placed great burden on courts of law, in a dynamic society.
There will be gaps in statutes and the courts have to evolve
doctrinal principles, standards and norms, generally. Further,
there will be ambiguity in the statutory language. A word may
become vague during its application to a particular case, which
appears to be clear during the enactment of law.8

7.Ibid
8.Ibid

Page 7 of 29
ESSENTIAL CHARACTERISTICS OF
DOCTRINAL RESEARCH:9

1. This type of research involves analysis of legal propositions


or legal concepts.

2. In this type of research a conventional source of data is used.

3. Legal propositions from enactments, administrative rules


and regulations, cases of courts etc. can be a part of
doctrinal legal research.

4. Doctrinal Research includes research into legal concepts and


principles of all types ' cases, statutes and rules. Doctrinal
Research focuses on legal data gathered from case laws,
legislation, journal articles, law reform reports,
parliamentary materials, policy documents, relevant text
books etc.

9.Supra note 2

Page 8 of 29
5. Doctrinal Research is a research “into” law and legal concepts
and not “about” law. It is theoretical and pure in nature and
hence called arm-chair research.
6. Doctrine is a synthesis of various rules, principles, norms,
interpretive guidelines and values. The term doctrinal in
case of doctrinal legal research is closely linked with the
doctrine of precedent.

7. Doctrinal Research is a research into the black letters of law.


Here, ascertainment of law is necessary.

8. Doctrinal Researcher makes his research based on secondary


data which is relevant to his proposition.

Page 9 of 29
TOOLS OF DOCTRINAL LEGAL RESEARCH10
1. Statutory materials.

2. Reports of committees.

3. Legal History.

4. Judgments, Case Reports and Case Digests.

5. Standard Textbooks and reference books.

6. Legal Periodicals.

7. Commentaries.

8. Govt. Reports.

9. Parliamentary & Debates.

10. Resources.

10. Ibid

Page 10 of 29
MERITS OF DOCTRINAL RESEARCH:11

1. In a doctrinal Research, the researcher is always engaged


in research work, analysis of case laws and judicial
pronouncements etc. unlike that in case of non-doctrinal
research. Also, doctrinal research is less time consuming.

2. It provides the lawyers, judges and others with the


instruments needed to reach a legal decision.

3. Doctrinal legal Research helps in continuity, consistency


and certainty of law. Such a research contributes in our
understanding of law, legal concepts, legal doctrines etc.

4. Such a Research provides quick answers to the legal


problems.

5. Such a Research helps in pointing out the inbuilt loopholes,


gaps, ambiguities or inconsistencies in the substantive law.

11.Ibid

Page 11 of 29
6. Doctrinal Research always helps informing a strong and
solid basis for the non-doctrinal research.

7. Doctrinal Researcher systemizes the legal propositions that


are a result of his rational reasoning and critical analysis. In
this process he may initiate a new Theory in the concerned field
of law.

8. Doctrinal Research helps in predicting how the legal


principles, concepts or doctrines would proceed in future.

Page 12 of 29
DEMERITS OF DOCTRINAL RESEARCH12

1. Doctrinal legal research is basically the result of individual


analysis of a researcher and the perception of a legal fact of
one researcher may vary from another researcher. However,
each of these perceptions is equally convincing and logical.
Thus, doctrinal legal research is subjective in nature.

2. In the recent past where there has been an economic,


political and social change, more emphasis is given on the
people and institution regulated by law. Law has been
attributed with the role of social engineering. There are a
number of facts which lie outside the legal system which
may be responsible for non-implementation or poor
implementation of a given piece of legislation. But, doctrinal
legal research do not look into these factors. Doctrinal
Research does not go beyond the sphere of law.

12.Ibid

Page 13 of 29
3. In many cases it is seen that there is a gap between the
actual social behavior and the behavior demanded by the
legal norm. Doctrinal Research does not address these gaps.

4. Doctrinal legal researcher puts emphasis on traditional


sources of law and judicial pronouncements of appellate
courts. The actual practice of lower courts and
administrative agencies with judicial and quasi-judicial
functions remain unexplored because their judgments are
not reported.

5. In case of a doctrinal research, the researcher looks into


statutory materials, judicial pronouncements, case reports
and principles or doctrines relating to it in order to deduce
legal propositions. His inquiry into law however does not get
support from social facts or values. As a result, these kinds of
researches become merely theoretical and far away from
social reality. Such a research is incomplete and inadequate.

Page 14 of 29
NON-DOCTRINAL RESEARCH

13
CONCEPT OF NON-DOCTRINAL RESEARCH:

Non-doctrinal research, also known as social-legal research, is

research that employs methods taken from other disciplines to

generate empirical data that answers research questions. It can

be a problem, policy, or a reform of the existing law. A legal

non-doctrinal finding can be qualitative or quantitative, and a

dogmatic non-doctrinal finding can be part of a large-scale

project. The non-doctrinal approach allows the researcher to

conduct research that analyses the law from the perspective of

other science disciplines, and to employ those disciplines in

drafting the law. For example, in the behavioral sciences, there

13.IJTRD6653paper.pdf

Page 15 of 29
is a standard form of consumer contract that contributes to the

study of psychological phenomena:

1. The tendency of consumers not to read the standard form

contract,

2. The inability of consumers to evaluate the terms of the

contract correctly once they do read and

3. The ability of sellers to deal with consumers. Because it uses

non-sectarian legal experimental data, it provides vital insights

about the law in context, i.e. how the law works out in the real

world. Legal research is experimental and valuable in detecting

and explaining practices and procedures in legal and

regulatory systems. It is also valuable in the settling disputes,

and impacts the legal phenomena of social institutions and

businesses. Similarly, experimental legal research in economics

applies legal analysis, statistical inference, and economic

Page 16 of 29
modeling, to the core areas of national and international law,

such as tort, property, contracts, criminal law, law enforcement

and litigation. Earlier research can be used to analyze the

economics of legal negligence theory.

Page 17 of 29
ESSENTIAL CHARACTERISTICS OF NON-
DOCTRINAL RESEARCH:

1. It tries to find out the impact of non-legal events upon the

legal decision.14

2. It seeks to identify and appraise the degree of variables

influence the outcome and15

3. It tries to find out the effect of each decision on people and

society as such legal decision making. The field of empirical

research is wider and the availability of authoritative sources

are very less which involve several new techniques which are

unknown to the research.16

14.Supra note 6
15.Ibid
16 .Ibid

Page 18 of 29
4. This type of research is conducted to assess the impact of

non-legal event on legal provisions or law making process.17

5. Variables which influence the legal process play an

important role.18

6. Consequences of any law or principle of law on the society

can be traced.19

7. Co-relation between law and other non-legal fact is the

outcome of this research.20

17. Supra note 1


18.Ibid
19.Ibid
20.Ibid

Page 19 of 29
TOOLS OF NON-DOCTRINAL RESEARCH:21

1. Meeting.

2. Survey.

3. Schedule.

4. Judgment.

5. Participant or non-participant.

6. Sampling.

7. Case study.

8. Posted or unpublished resources.

21.http://www.quora.com/what-is-non-doctrinal-legal-resaerch.

Page 20 of 29
MERITS OF NON-DOCTRINAL RESEARCH:22

1. Non-doctrinal research enhances lawyer’s ability to

understand the implications and effects on the society.

2. Legal researches can use social science methodologies

themselves to investigate issues, or they can collaborate

with skilled researchers from other disciplines.

3. It highlights the gap between legislative goals and social

reality and thereby depicts a true picture of law-in-action.

4. It also highlights the gap in relation to the practice of law

enforcers, regulators and adjudicators and use or under-

use of the law by intended beneficiaries of the law.

22.http://blablawriting.com/doctrinal-and-non-doctrinal-research-essay.

Page 21 of 29
5. It highlights the reasons behind making the law

‘symbolic’, less-effective or ineffective.

Page 22 of 29
DEMERITS OF NON-DOCTRINAL RESEARCH:23

1. Financial support is lacking.

2. Other disciplines had shed away from the study of legal

order has been shed away

3. Due to their preoccupation with their profession, the

contributions of legal

4. Legal researchers lack a tradition that enables them to

strengthen the empirical

5. Lack of training in the use of techniques of this empirical

research. Most of the steps by other disciplines academicians

are very less research of research such as collection of data,

field work, formation of hypothesis, etc. are unknown to the

legal researcher.

23. Supra note 6

Page 23 of 29
6. There is an unfavorable and arrangement attitude towards

the empirical research. The use of qualitative measurement

techniques are very difficult to understand by legal

researchers.

Page 24 of 29
DIFFERENCE BETWEEN DOCTRINAL AND
NON-DOCTRINAL RESEARCH:24

1. Doctrinal research lays much emphasis upon legal

principles but non-doctrinal research lays lesser

emphasis upon doctrines.

2. In doctrinal research, researcher uses traditional

source for data but non-doctrinal research is not

solely dependent on traditional or conventional

sources for data.

3. In doctrinal research scholar seeks to answer one or

two legal propositions or questions, on the other hand

non-doctrinal research involves number of questions

and large area.

24. Supra note 1

Page 25 of 29
4. Doctrinal research is a theoretical study but non-

doctrinal research involves empirical study.

5. Mostly secondary source are used in doctrinal

research and primary data are used in non-doctrinal

research.

6. Doctrinal research is concerned with legal

propositions; on the other hand non-doctrinal

research is more concerned with social values and

people.

Page 26 of 29
CONCLUSION
In conclusion, I can say that it is easy to target a specific

methodology and identify its strengths and weaknesses.

However, it must be noted that doctrinal and non-doctrinal

legal research are the ultimate way to find the answers that

have been raised in the context of attempts to understand the

emerging issues in the framework of the law. There is no

hierarchy between methodologies and they are all of equal

importance for the development and understanding of the law.

What is crucial is that researchers must try and equip

themselves with the necessary skills to enable them to

comfortably meet their research objectives. Undoubtedly, a

well-versed scholar will be aware of the advantages and

disadvantages of any particular methodology, and will work to

obtain the benefits that result from a better quality of work.

Page 27 of 29
Often, the combination of methodologies, i.e. a mixed method

using ideological, social, and legal, can work together to

achieve a better understanding of the law. Thus, postgraduate

scholars would do well to equip themselves by using alternative

research methodologies.

Page 28 of 29
BIBLIOGRAPHY
BOOKS :

1. Shipra Agarwal; Legal Research Methodology; Allahabad Law


Agency; 6th Edition 2016
2. Mona Purohit; legal system and research methodology;CLP;3rd
Edition 2014; Reprint 2015

WEBSITES:

1. www.academia.edu
2. www.quora.com
3. www.lawdessertation.blogspot.in
4. IJTRD6653paper.pdf
5. www.blablawriting.com

Page 29 of 29