Thursday, 16 March 2017 05:29

Legal research methods


Traditionally, the subject of legal research methods as studied at the Faculty of Laws of the University of Malta was quite a straightforward exercise. It pertained to what in the literature is called ‘doctrinal research’ or the ‘black letter’ approach to research. Essentially, this type of research restricts itself to a textual analysis of the law with reference to case law and doctrine.

The difficulty with this type of research is that it is not interdisciplinary and does not make use of qualitative and quantitative legal research tools which give a broader perspective to the dimension of law while linking it to the society which, after all, the law regulates. Law faculties overseas have moved on and are now teaching other legal research methods than the traditional doctrine research one.

Since a couple of years ago, we have introduced at the Faculty of Laws, legal research methods in a number of courses, especially those which lead to a research project, term paper, dissertation or thesis in order to broaden as much as possible the horizons of legal studying while contextualising it in the society of which we all form part.

This has helped to combine doctrinal analysis with empirical legal scholarship. We are now infusing legal research with techniques and approaches from the humanities and the social sciences. We are not, of course, the first law faculty moving in this direction – probably we are the last!

Be it as it may, what is important now is that we have made the shift towards a combined research method of both doctrinal and empirical scholarship.

Law is and remains a social phenomenon. As the Latin maxim runs: ubi societas, ibi jus. Where there is society, there is law. The socio-legal research method simply does this: it contextualises the teaching of law to the society which it regulates. Indeed, the doctrinal analysis approach has been correctly criticised in literature on the ground that it is too inward looking, that it is too limited in scope, and that it does not take on board emerging problems in society to afford a legal solution thereto.

The relevance of using other disciplines such as psychology, political science, international relations, sociology, anthropology, criminology, history, etc. contributes to broadening legal discourse. After all, as the adage goes, the law regulates the human being from the cradle to the grave. It intertwines with several other areas of human knowledge and essentially regulates them in all their manifold existences. It is so all-encompassing that it is not possible to conceive of any of the other academic subjects where the law does not have a say.

What is research methodology? Why study empirical legal research methods? Precisely because our experience tells us that when students in the Faculty of Laws are asked to draw up a research question, for either a term paper, dissertation, or a doctoral thesis, very often they are lost. They do not know what to write, or where to start from. They then consult older legal practitioners who may themselves be uncertain about the relevance of research methodologies.

Legal scholarship is about the ability to analyse a problem involving a narrowly focused question of law, and through research to provide a solution to it

Legal scholarship is about the ability to analyse a problem involving a narrowly focused question of law, and through research to provide a solution to it. This involves the ability to find relevant legal sources, extract essential points from them, apply the law to provide answers, and to communicate the reasons for the research findings through legal materials.

Indeed, law students are now taught that emergent research findings must no longer be based on personal views and opinions, but rather be evidence-based, and supported with the literature.

Research methodologies are regarded as essential by most disciplines within the social science. However, there is often a tendency within law to not devote time to any significant study of research methods. In essence, the study of methodology shapes a research question or a hypothesis, and determines what data to collect, how that data is analysed, and how to convince legal scholars and other researchers that the study and its emergent findings are truly scientific and credible.

Method is also closely related to questions of theory. This is because every legal research study begins from a theoretical basis. After identifying a problem statement, or a research question or hypothesis, it is important to determine what theories, key concepts, and models exist around that research topic.

The theoretical basis of a study will inform the reader how law is conceptualised by other legal scholars. The theoretical framework also provides scientific justification for research, that it is not just an arbitrary thought, but that it is both grounded in and based on scientific theory.

How can you determine what theories and key concepts frame a research question? This is done through a literature review, where a researcher finds out how other legal scholars have defined these key concepts.

The study of research methodologies should not be seen as something that is imposed by the Faculty of Laws, but rather as a voluntarily chosen modus operandi that can make research more challenging and robust. Training in research methods is of fundamental importance to the task of legal research that relates directly to both the formulation of research proposals, and the practicalities of actually carrying out that research.

Training in research skills acts as a mediator between personal beliefs and opinions, and the data and evidence produced through research. Moreover, students come to understand ways of integrating empirical data about people’s lived experiences into their research.

Law is a discipline in transition moving from a predominantly monodisciplinary dogmatic tradition towards multidisciplinary and empirical research. Today, law students are expected to add something new to the body of knowledge with their term paper or dissertation through engaging with empirical research.

Is legal scholarship really so different from other social sciences or the humanities that it can do without generally accepted research methodologies? In the social sciences there is consensus on how to draw up a research question, or how to use observation or in-depth interviewing for the collection of ‘uncontaminated’ primary data. However, in law there are no accepted guidelines on how to write a case note, or even how to do a proper literature review.

Some scepticism about the study of research methodology in law has to do with old quarrels about whether law is a science or not. Old-time legal scholars claim that law is different from other sciences, but do not explain how and why, and what the justification for this is. While they argue that multidisciplinarians do not understand what it means for law to be a normative science, multidisciplinarians contend that doctrinal research merely defends personal opinion.

Changes in the law are first and foremost intended to solve societal problems. However, a major difficulty when changing the law is that there is very little empirical evidence, based on people’s lived realities, available to lawyers to generate arguments in favour of reform.

Clearly, there is no longer room for one dominant methodology that separates law from society, and that overlooks the sociological, philosophical, political and moral implications of law. In today’s law schools it is now accepted that legal research based on narrative and the black letter approach, without any empirical content, is hollow and passé.

Author : Camilleri-Cassar, Kevin Aquilina

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