Doctrinal and Non Doctrinal Research Methadology

DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH

Author(s): S.N. Jain

Source: Journal of the Indian Law Institute, Vol. 24, No. 2/3, SILVER JUBILEE NUMBER
(APRIL-SEPTEMBER 1982), pp. 341-361
Published by: Indian Law Institute
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DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH*
S.N. Jain**
I. Doctrinal research and social values
LAW IS a normative science, that is, a science which lays down norms
and standards for human behaviour in a specified situation or situations
enforceable through the sanction of the state. What distinguishes law
from other social sciences (and law is a social science on account of the
simple fact that it regulates human conduct and relationship) is its
normative character. This fact along with the fact that stability and
certainty of law are desirable goals and social values to be pursued, make
doctrinal research to be of primary concern to a legal researcher.
Doctrinal research, of course, involves analysis of case law,
arranging, ordering and systematising legal propositions, and study of
legal institutions, but it does more - it creates law and its major tool (but
not the only tool) to do so is through legal reasoning or rational deduction.
Even during the period when analytical positivism held its sway and the
dominant legal philosophy was that judges did not create law but merely
declared it, the truth was that much judicial creativity was going on. The
development of common law by the common law judges is a clear
example of law-making by the judges. It has been commented upon the
traditional view :
While the traditional theory may appear more plausible in a period

characterized by relatively stable conditions, as opposed to one in
which great changes and developments are clearly evident, it is still
difficult to see how one could literally believe the law to be a coherent
and complete system, and the judicial process to be only a logical
application of existing rules of law. Professor Cooperrider has made
the plausible suggestion that the traditional theory was not intended
as an accurate descriptive account of the judicial process : ť...I am
also inclined to doubt that it is sound to think of it as a conscious
attempt at scientific description. It did, however, represent a view
which at one time was generally held as to the attitude which the
judge should bring to his task : that it should be his objective to
deal with the case before him in that way which was indicated by an
♦This paper is a supplement to the author's earlier paper, 4 'Legal Research and
Methodology", 14 /. I. L. /. 487 (1972).
Reprinted from 17 Journal of the Indian Law Institute 516-536 (1975).
♦♦L.L.M., S.J.D. (Northwestern), Director, Indian Law Institute, New Delhi.
342 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3
interpretation of existing authorities, rather than in that way

seemed to him on the facts to be the fairest or most desirable from
a social point of view. It called for the subordination of his judg-
ment to that of the collectivity of his predecessors, for a primary
reliance on a reasoned extrapolation of accumulated experience.'
[The Rule of Law and the Judicial Process, 50 Mich. L. Rev. 505-06
(1961)]. According to this interpretation, the traditional theory
represents more a practical regulative ideal of how the judicial
process ought to be conceived by the judiciary than a theoretical
analysis of its actual structure and functioning.1
That even in that case-law method of research much creativity goes on

is shown by Cardozo in his work, The Nature of the Judicial Process .
His thesis is that law or legal propositions are not final or absolute but are
in the state of becoming. He quotes Munroe Smith :
The rules and principles of case law have never been treated as
final truths, but as working hypotheses, continually retested in those
great laboratories of the law, the courts of justice. Every new case
is an experiment; and if the accepted rule which seems applicable
yields a result which is felt to be unjust, the rule is reconsidered. It
may not be modified at once, for the attempt to do absolute justice
in every single case would make the development and maintenance
of general rules impossible; but if a rule continues to work injustice,
it will eventually be reformulated. The principles themselves are
continually retested; for if the rules derived from a principle do not
work well, the principle itself must ultimately be re-examined.2
He himself says :
Hardly a rule of today but may be matched by its opposite of

yesterday.... These changes or most of them have been wrought by
judges. The men who wrought them used the same tools as the
judges of today. The changes, as they were made in this case or
that, may not have seemed momentous in the making. The result,
however, when the process was prolonged throughout the years, has
been not merely to supplement or modify; it has been torevolution-
alize and transform.3
The two outstanding examples of the creativity of doctrinal research

are the law of torts and administrative law. About the latter, for
1. Boonin, Concerning the Relation of Logic to Law, 17 Jour, of Leg. Ed. 155 at
158-159(1964-65). Emphasis as in the orginal.
2. Quoted in The Nature of the Judicial Process 23 (1921).
3. Id. at 26-28.
1982] DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 343
instance, it has been remarked :
The creation of a body of law where none had hitherto existed is a

social achievement. It is an achievement not to be under-estimated.
It also serves as a reminder that at particular periods in the history
of law the creative working out of legal doctrine is both necessary
and critical and justifiably a paramount concern of legal research.4
It may not be out of place to mention that in India it was the pionee-
ring work of A.T. Markose on Judical Control of Administrative Action
and the seminars organised and the work done by the Indian Law Institute
in the area of administrative law which had created an awareness of the
importance of the subject for the legal system.
With the emergence of the sociological school, the creative role of
lawyers and judges has come to be recognised explicitly. The writings
of the sociological jurists coincided with the change in political philosophy
from the laissez faire to the welfare state or were rather the result of this
metamorphosis. One can see the seeds of the conception of law as a
catalytic agent to advance human welfare in the following famous remarks
of Justice Holmes :
The life of the law has not been logic : it has been experience. The
felt necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the pre-
judices which judges share with their fellow men, have had a good
deal more to do than the syllogism in determining the rules by which
men should be governed.5
The writings of Dean Roscoe Pound, however, depict more clearly

and forcefully the task of law to be the adjustment of human relationship
in society to the best possible advantage. Thus, he says :
For the purpose of understanding the law of today I am content

with a picture of satisfying as much of the whole body of human
wants as we may with the least sacrifice. I am content to think of
law as a social institution to satisfy social wants - the claims and
demands and expectations involved in the existence of civilized
society - by giving effect to as much as we may with the least sacrifice,
so far as such wants may be satisfied or such claims given effect by
an ordering of human conduct through politically organised society.
For present purposes I am content to see in legal history the record
of a continually wider recognizing and satisfying of human wants or
claims or desires through social control; a more embracing and
4. N.D. Grundstein, Administrative Law and the Behavioral and Management

Sciences, 17 Jour, of Leg. Ed. 121 at 122 (1964-65).
5. Oliver Wendell Holmes, The Common Law 1 (1881).
344 JOURNAL ÔF THE INDIAN LAW INSTITUTE [Vol. 24 : 2 & 3
more effective securing of social interests; a continually more com-

plete and effective elimination of waste and precluding of friction in
human enjoyment of the goods of existence- in short, a continually
more efficacious social engineering.6
At another place he says :
As the saying is, we all want the earth. We all have a multiplicity
of desires and demands which we seek to satisfy. There are very
many of us but there is only one earth. The desires of each con-
tinually conflict with or overlap those of his neighbours. So there
is, as one might say, a great task of social engineering. There is a
task of making the goods of existence, the means of satisfying the
demands and desires of men living together in a politically organised
society, if they cannot satisfy all the claims that men make upon
them, at least go round as far as possible. This is what we mean
when we say that the end of law is justice.... We mean such an
adjustment of relations and ordering of conduct as will make the
goods of existence, the means of satisfying human claims to have
things and do things, go round as far as possible with the least
friction and waste.7
The task of law as that of " social engineering" has come to be accepted
as a dogma by the civilized societies all over the world including India.
The chapters on fundamental rights and directive principles of state policy
of the Constitution of India embody this philosophy. The concern of law
as an instrument of economic and social justice has grown to such an
extent that there is hardly any human conduct which has been left
untouched by law. The result is that there has been an explosion of laws
and the law has become all pervading. We have come to live in an age
of laws. The legislative mill has been constantly pouring out laws. This
is not the only factory for producing statutory laws. The executive made
law (delegated legislation) has become much more important both quanti-
tatively and qualitatively.
The present emphasis of law on achieving the social welfare of the
people along with the fact of great economic and technological advance-
ments have placed great burdens on law and the courts of law. Because
of the necessity to enact laws on complex and diverse subjects it has
become inevitable for the legislature to leave gaps in the statutes and
deliberately give discretion to the courts to evolve doctrines, principles,
standards and norms themselves in the process of application of the law
from case to case. Further, the complexity of laws has given scope for
ambiguities in the statutory language or scheme. Then a word used in a
6. Roscoe Pound, Introduction to the Philosophy of Law 47 (1963).

7. Roscoe Pound, Social Control Through Law 64-65 (1968).
statute, which may appear to be fairly clear at the time of enactment of

the statute, may acquire vagueness when the occasion of its application to
a case by the court arises. Similarly, the plain statutory language may
lose its plainness at the time of actual controversy because of the human
limitation to foresee all the difficulties and nuances of the problem. A few
examples may be taken from the Indian statute book to illustrate some of
these points.
An example, par excellence , of the legislature conferring discretion on
the courts is that of article 19 of the Constitution which permits the state
to impose reasonable restrictions on the various rights guaranteed to the
citizens by that article. There is no definite test to judge the reasonableness
of a restriction, and the Supreme Court itself has stated :
In evaluating such elusive factors and forming their own conception

of what is reasonable in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the
Judges participating in the decision should play an important part,
and the limit to their interference with legislative judgment in such
cases can only be dictated by their sense of responsibility and self-
restraint and the sobering reflection that the Constitution is meant
not only for people of their way of thinking but for all, that the
majority of the elected representatives of the people have, in au-
thorising the imposition of the restrictions, considered them to be
reasonable.8
In considering reasonableness of a restriction the task before the courts

is to judge the objective of public interest to be served by the restriction
against fairness to the individual.
The Indian statute book is replete with provisions where the legislature
has given discretion to the courts to develop the law from case to case. A
few examples may be given here. Use of such phrases as "just and
equitable",9 "public order",10 "inexpedient"100 "reasonable opportunity
of being heard"11 "reasons to believe",12 "undue and unreasonable pre-
ference",13 "acting under colour of office",14 "reasonable sum",15 "rash or
8. State of Madras v. V.G. Row , A.I.R. 1952 S.C. 196 at 200.

9. S. 433 of the Companies Act, 1956.
10. S. 3 of the Maintenance of Internal Security Act, 1971.
10 a. S. 7-A of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
11. This phrase is used in innumerable statutes, see particularly, article 311 of the
Constitution of India.
12. S. 147 of the Income Tax Act, 1961.
13. S. 28 of the Indian Railways Act.
14. S. 99 of the Indian Penal Code.
15. S. 74 of the Indian Contract Act.
negligent act",16 "reasonable apprehension",17 "reasonable cause",18

"oppression and mismanagement",19 are only a few of the illustrations
amongst the host of statutory provisions. Also even such words or phrase
as "sale" for sales tax purposes, "interstate sale", "annual letting value",
"fraud" for declaring a marriage as "nullity", "industry", "industria
dispute", "business expenses", "best judgment assessment", "obscenity
and innumerable such other phrases have presented a wide scope for the
exercise of judicial discretion. It may not be wrong to say that the
amorphous mass of the present day statutory provisions take concrete
shape and form in the great laboratories of the law courts, and this applies
even to those statutory provisions which appeared to be precise, articulate
and clear at the time of their enactment. The fact is that "all rules have
a penumbra of uncertainty where the judge must choose between alter-
natives".190
Apart from this, while interpreting certain clauses, the judiciary itself
has evolved certain standards which are vague and flexible. Three good
examples in this respect from the area of constitutional law are "reasonable
classification" under article 14, "direct and indirect restriction" under part
XIII of the Constitution, and "the basic feature theory" for purposes of
amending the Constitution. A few branches of the law have been more or
less entirely developed by the judiciary. The two modern illustrations are
labour law and administrative law. Taking a leaf from administrative law,
such judicially created phrases as "excessive delegation" (to test the validity
of the delegated legislation) or 6 6 ultra vires " (to test the validity of adminis-
trative action) or "no legal evidence rule", or "error of law apparent on
the face of the record" leave an area of wide discretion for the courts to
operate. In doing so they have to draw nice lines between, and balance,
the interests of the individual to protect him from arbitrary government
and administrative effectiveness and public interest. The application of
these phrases in a given situation calls for a great deal of value judgment
and "painful adjustment of conflicting values".20
A brief survey of the statutory provisions leads to one inescapable
conclusion. In modern times, case-law based research is concerned to a
very large extent with considerations of social value, social policy and the
social utility of law and any legal proposition. It is naive to think that the
task of a doctrinal researcher is merely mechanical - a simple application
of a clear precedent or statutory provision to the problem in hand, or dry
deductive logic to solve a new problem. He may look for his value
16. S. 304-A of the Indian Penal Code.

17. S. 10 of the Hindu Marriage Act, 1955.
18. Ibid .
19. Ss. 397 and 398 of the Companies Act, 1956.
19 a. Hart, The Concept of Law 12 (1961).
20. Friedmann, Law in a Changing Society 384 (1972).
premises in the statutory provisions, cases, history in his own rationa

and meaning of justice. He knows that there are several alternativ
solutions to a problem (even this applies to a lawyer who is arguing a c
before a court or an administrative authority) and that he has to ado
one which achieves the best interests of the society. The judges alway
unconsciously or without admitting think of the social utility of the
decisions, but cases are also not infrequent when the Indian Supreme Co
has consciously and deliberately incorporated social values in the proc
of its reasoning. To take a few examples here, in Bengal Immunity Co.
State of Bihar ,21 the court, while overruling State of Bombay v. Un
Motors ,22 stated :
All big traders will have to get themselves registered in each State,
study the Sales Tax Acts of each State, conform to the require-
ments of all State laws which are by no means uniform and, finally,
may be simultaneously called upon to produce their books of
account in support of their returns before the officers of each State.
Anybody who has any practical experience of the working of the
sales tax laws of the different 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 exaggera-
tion.23
In Jyoti Pershad v. Union Territory of Delhi ,24 the Supreme Court

observed :
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.... If 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 construc-
tion 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
21. A.I.R. 1955 S.C. 661.

22. A.I.R. 1953 S.C. 252.
23. Supra note 21 at 687.
24. A.I.R. 1961 S.C. 1602.
concord and peaceful adjustment and thus furthering the mora

material progress of the community as a whole.85
In the famous Golalc Nath v. State of Punjab, 29 Subba Rao, C.J
But, having regard to the past history of our country, it could

implicitly believe the representatives of the people, for uncontr
and unrestricted power might lead to an authoritarian State.
therefore, preserves the natural rights against the State encro
ment and constitutes the higher judiciary of the State as the sentin
of the said rights and the balancing wheel between the rig
subject to social control.87
The court's concern with social justice is depicted forcefully

following observations of Bhagwati, J., in Kanwarlal v. Amarnath
This produces anti-democratic effects in that a political party

individual backed by the affluent and wealthy would be ab
secure a greater representation than a political party or indiv
who is without any links with affluence or wealth. This w
result in serious discrimination between one political part
individual and another on the basis of money power, and tha
its turn would mean that "some voters are denied an 'equal' v
and some candidates are denied an 'equal chance' "....The de
cratic process can function efficiently and effectively for the ben
of the ^mmnn good and reach out the benefits of self-governm
to the common man only if it brings about a participatory d
cracy in which every man, however lowly or humble he may
should be able to participate on a footing of equality with ot
Individuals with grievances, men and women with ideas and v
are the sources of any society's power to improve itself. Gov
ment by consent means that such individuals must eventually
able to find groups that will work with them and must be ab
make their voices heard in these groups and no group should
insulated from competition and criticism. It is only by the m
tenance of such conditions that democracy can thrive and pr
and this can be ensured only by limiting the expenditure which
be incurred in connection with elections, so that, as far as pos
no one single political party or individual can have unfair adva
over the other by reason of its larger resources and the reso
available for being utilised in the electoral process are wi
25. Id. at 1613.

26. A.I.R. 1967 S.C. 1643.
27. Id. at 1655.
28. A.LR. 1975 S.C. 308.
reasonable bounds and not unduly disparate and the electoral

contest becomes evenly matched. Then alone the small man will
come into his own and will be able to secure proper representation
in our legislative bodies.
The other objective of limiting expenditure is to eliminate, as far as

possible, the influence of big money in the electoral process. If
there were no limit on expenditure, political parties would go all
out for collecting contributions and obviously the largest contri-
butions would be from the rich and affluent who constitute but a
fraction of the electorate. The pernicious influences of big money
would then play a decisive role in controlling the democratic
process in the country. This would inevitably lead to the worst
form of political corruption and that in its wake is bound to
produce other vices at all levels.29
Finally, while considering the judges' role in determining questions of

"public policy", Mathew, J., said in Murlidhar v. State of U.P. ě.29a
There is no alternative under our system but to vest this power with
judges. The difficulty of discovering what public policy is at any
given moment certainly does not absolve the judges from the duty
of doing so. In conducting an enquiry... judges are not hidebound
by precedent. The judges must look beyond the narrow field of
past precedents, though this still leaves open the question, in which
direction he (sic) must cast his (sic) gaze. The judges are to base
their decision on the opinions of men of the world, as distinguished
from opinions based on legal learning. In other words, the judges
will have to look beyond the jurisprudence and that in so doing,
they must consult not their own personal standards or predilections
but those of the dominant opinion at a given moment, or what has
been termed customary morality. The judges must consider the
social consequences of the rule propounded, especially in the light
of the factual evidence available as to its probable results.290
Thus, the objective and philosophy of doctrinal researcher has to be the

same as that of sociological jurisprudence, that is, social engineering
through law. In this sense he is a sociological jurist, though it is true that
his liberty of operation is restricted to some extent by the statutory
language, existing doctrines and also the consciousness that a sound legal
system should move towards certainty and stability of law which are
29. Id. at 314-15.

29 a. A.I.R. 1974 S.C. 1924.
29 b. Id. at 1930.
350 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 24 : 2 & 3
social values to be desired. But, as seen above, the law in modern times
leaves a large scope, a large leeway, and the leeway may bs more in som
cases and less in others but it is there, for moulding and adapting it to t
society and to social change. This has been additionally facilitated
India by the Supreme Court expressly agreeing as a principle to review
own decisions, and a number of instances can be cited where the court
done so. The process began with the court overruling the United Moto
case30 in the Bengal Immunity case31 and its high watermark was reach
when in the famous Golak Nath case,32 it overruled its consistent holdi
in the two earlier cases - Shankari Prasad 33 and Sajjan Singh?1 A f
other instances of such overruling are: Director of Rationing v. Corporat
of Calcutta?5 by Superintendent and Remembrancer of Legal Affairs
Corporation of Calcutta ,36 Indian Airlines Corporotion v. Sukhdeo Rai 37 by
Sukhdev Singh v. Bhagatram,38 Sardarilal v. Union of India 39 by Samsh
Singh v. State of Punjabi
Any number of cases can be cited when the court without expressl
overruling its earlier decisions departed from them or weakened their
authority or modified the principles laid down (sometimes in the garb
developing them further). Such cases are demonstrative of the fact th
the language of the statute is not petrified for all times to come and
meaning and impact change in the catalytic hands of the judge.
The author is not unmindful of the fact that sometimes a doctrinal
researcher may lack a utilitarian approach, and his sole concern may be
to test the logical consistency and technical soundness of a case or a legal
proposition by analysing it with reference to the precedential symmetry
and on the anvil of strict literal meaning (by keeping grammar and
dictionary in one hand and the statutory language in the other). Technical
soundness of the law is not unimportant but it should not operate in
vacuum and ought to be balanced, wherever there is scope, against social
policy and mores of the society.
II. 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,
30. State of Bombay v. United Motors , supra note 22.

31. Bengal Immunity Co. v. State of Bihar , supra note 21.
32. Golak Nath v. State of Punjab , supra note 26.
33. Shankari Prasad v. Union of India , A.I R. 1951 S.C. 458.
34. Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845.
35. A.IR. 1960 S.C. 1355.
36. A.I.R. 1967 S.C. 997.
37. A.I.R. 1971 S.C. 1828.
38. A.I.R. 1975 S.C. 1331.
39. A.I.R. 1971 S.C. 1547.
40. A.I.R. 1974 S.C. 2192.
reflection and study of what others have done before him in a similar or
same kind of situation. However, it will certainly add value to his
research if he gets an opportunity to test his ideas by sociological data.
And this is what the author understands by the sociology of law. 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. It seeks answers to such questions as- are law and
legal institutions serving the needs of the society ? Are they suited to the
society in which they are operating ? What factors influence the decisions
of adjudicators (courts or administrative agencies)? Are the laws properly
administered and enforced (or do they exist only in text-book) ? 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" 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.
Though sociology of law may have great potentialities, yet a few
caveats must be entered here. Firstly, sociological research is extremely
time consuming and costly. It has been stated: tťSocio-legal research is
more expensive, it calls for additional training; and it entails great
commitments of time and energy to produce meaningful results, either for
policy-makers or theory-builders."41 The decisions in human affairs,
however, cannot await the findings of such studies and must constantly be
made, and herein comes the value and utility of doctrinal research. Thus,
"Doctrinal legal research... has had the practical purpose of providing
lawyers, judges and others with the tools needed to reach decisions on
an immense variety of problems, usually with very limited time at
disposal."42 In this context K.C. Davis also observes:
[I]t may be a hundred or several hundred years before we get truly

scientific answers to some of the questions I am trying to explore,
and we need to make some judgments in the meantime. Some of
the most useful thinking can be unscientific, impressionistic, intuitive
based on inadequate observation or insufficient data or wild guesses
or imagination. Scientific findings are obviously the long term
objective, but a good many judgments which fall far short of scien-
tific findings are valuable, respectable and urgently needed.43
41. Law and Development 10 (1974, published by the International Legal Center, New
York).
42. Vilhelm Aubert (Ed.), Sociology of Law 9 (1969).
43. K.C. Davis, Behavioral Science and Administrative Law, 17 Jour , of Leg . Ed . 137
at 151-52(1964-65).
Secondly, law-sociology research needs a strong base of doctr

research. Upendra Baxi rightly points out that "law-society res
cannot thrive on a weak infra-structure base of doctrinal type analy
the authoritative legal materials."44 The reason is simple. The prim
objectives of the sociology of law are to reveal, by empirical research
law and legal institutions operate in society, to improve the conten
law, both in substantive and procedural aspects, to improve the str
and functioning of legal institutions whether engaged in law admin
tion, law enforcement, or settlement of disputes (adjudicatory proc
and these objectives cannot be achieved unless the researcher has in-d
knowledge of the legal doctrines, case law and legal institutions. Furt
such a knowledge is essential for identifying issues, delimiting
keeping the goals in view, and determining the hypotheses on whic
proceed. In the absence of these, the sociological research will be lik
boat without a rudder and a compass, left in the open sea. The
exercise may be a fruitless one. The authors of the monograph on L
and Development were perhaps conscious of this when they said :
[W]e should make clear that we do not denigrate doctrinal research

which has a proud tradition of outstanding scholarship. Nor d
we seek to minimise the importance of doctrinal research to the
establishment and functioning of a legal system and thus to societ
We are also conscious that in many of the countries we were con
cerned with, there is an absence of basic doctrinal research and
indeed not infrequently the tools and raw materials of such research.
While the situation varies between countries, we recognise that in
some countries doctrinal research could claim a high priority in
allocations of the resources available for legal research.45
In India where we still lack the infra-structure of doctrinal research,

such a research will naturally have to claim high priority.
Thirdly, sociological research may help in building general theories,
but it seems inadequate where the problems are to be solved and the law
is to be developed from case to case. For instance, as a matter of general
theory it is axiomatic that governmental powers need to be checked as
"power corrupts and absolute power corrupts absolutely", but too much
check may result in governmental ineffectiveness. This necessitates that
when a case comes before a court in which abuse of power by the
executive is alleged, pragmatic considerations ought to control the
decision-making. Since the law to control governmental action develops
from case to case, it will not do to theorise that either there should be no
44. Upendra Baxi, Sacio-Legal Research in India : A Programschrift 7 (I.C.S.S.R.

1975).
45* Supra note 41 at 19.
1982J DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH 353
control over governmental action or there should be adequate control.

That is why it has been said about the ultra vires doctrine, which is the
basis of judicial review in case of writs :
The ultra vires doctrine provides a half-way basis of judicial review

between review in appeal and no review at all.... The half-way
review, the extent of which is not always clear, creates uncertainty
about judicial intervention in administrative action. Sometimes, the
courts may feel like intervening because they feel strongly about
the injustice of the case before them ; sometimes they are not sure
of injustice and wish to give due deference to the expertise of the
administration and uphold the decision.46
It is beyond the comprehension of the author how we can improve the

contents of the ultra vires doctrine by sociological research. To illustrat
the point by another example, take the case of the concept of "sale" for
purposes of sales tax. The tax is imposed only on sale and not on a
contract for labour or service. Now every sale of a commodity does
involve some labour. Still there may be clear cases of sale and clear
cases of labour contract (or works contract) but there may be innumerabl
penumbral situations where it will be difficult to say on which side
particular transaction falls.
Fourthly, the function of law in society is not only to follow or adapt
itself to public opinion (assuming that it is possible to know correc
public opinion) but also to give a lead and mould public opinion. Whe
the law should follow one course or the other may not always be
answered on the basis of sociological data but on the basis of one's
maturity of judgment, intuition, and experience, though sociologic
research may be of some informational value to thè decision-maker.
Fifthly, on account of complicated settings (and this particularly applie
to economic data) and variable factors, we may again be thrown back to
our own pre-conceived ideas, prejudices and feelings in furnishing solution
to certain problems. For instance, there has been the perennial problem o
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 powers. We may not be
able to answer these questions basic to any society through scientific study,47
Even if one were to attempt such a study, it would require such hug
resources (owing to the vastness of the subjects of inquiry) that one ma
46. M.P. Jain and S.N. Jain, Principles of Administrative Law 363 (1973).
47. Kelsen says : "The issue between liberalism and socialism, lor instance, is, in
great part, not really an issue over the aim of society, but rather one as to the corre
way of achieving a goal as to which men are by and large in agreement ; and thi
issue cannot be scientifically determined, at least not today." General Theory of L
and State 7 (1961).
not be able to have them at one's command. Coming to a lower p

under part XIII of the Constitution, states cannot discriminate agai
interstate commerce, but at times it is not easy to determine whether th
has been discrimination or not and an empirical study may not
furnish the answer. This is clear from the following extract from an art
by the author :
In determining the validity of a law against a challenge on accoun

of discrimination against interstate commerce, multiple taxation o
such commerce, or undue burdens on it, the judiciary has an im-
portant though a difficult role to play. Should the Court g
merely by patent or formal discrimination ? Should it cut deepe
and go behind the avowed purpose of the law and attempt to fin
out its actual effects ? Should it examine the law in question in th
context of the entire economy ? For exeample, state A imposes a
fifteen per cent tax on cost of alcoholic liquor manufactured in th
state. Now state B, which is importing liquor from state A,
imposes a tax of twenty per cent on liquor manufactured within it
How much tax should state B impose on imported liquor ? On
view could be that it should impose a tax of twenty per cent (i.e
the same percentage of tax which it is imposing on intrastat
liquor). Another view which could be taken is that it should
impose a tax of only five per cent as a higher tax would put
burden on the imported liquor than the intrastate liquor and woul
be discriminatory against the former. There are several limitation
in the latter approach. First, since the intrastate tax on liquor is
likely to differ from state to state, the importing state will be requi-
red to impose different taxes on imported liquor depending on th
state from which it is coming. It is doubtful whether such a tax
would be possible to administer. Second, if the tax involved i
other than excise, say, sales tax, it may be practically difficult fo
the importing state to know the account of tax which an imported
commodity has actually borne in the exporting state. The structur
of sales tax differs from state to state. In some states the system i
multiple point, in some two point, in some single point on the firs
sale and in some single point on the last sale. The incidence of loca
sales tax on a commodity exported to another state will depend o
the system of sales tax in that state and the number of local sales.
If equality is to be achieved in the sense suggested above, then it
would not only mean the different rates on the sale of the same im
ported commodity within a state depending upon the state from
which it is imported but also the rates would have to vary on
commodity from the same state depending upon the number of loca
sales in that state - a practical impossibility. Third, if real equality i
to be attained in the example relating to liquor, why stop only at the
excise duty. Why not consider all other taxes like the property taĶ
1982] DOCTRINAL AND NON-DOCTRtNAL LÉGAL RESEARCH 355
and the taxes on the raw materials going into the manufacture of
liquor which will have an impact on the cost of production of the
liquor. Under the equality formula suggested above, these should
also be taken into account by the importing state.48
In spite of the readiness of the United States Supreme Court to be

receptive to economic and social data, the following quotation again is
indicative of the difficulties in this regard :
In the United States, in the non-tax area the Supreme Court usually
goes deeper into various factors in order to determine whether the
law was placing an "undue" burden on interstate commerce which
"frequently entails weighing evidence, drawing nice lines, and mak-
ing close and difficult decision on important policy questions."
However, in the tax area, probably because of greater difficulty in
evaluating complicated economic factors involved, this has not been
the general approach....49
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
decision-making research Davis observes :
Research on decision-making excites many people, including

Professor Grundstein, and the quantity of such research is volumi-
nous - even staggering. A single bibliography on decision-making
research fills a sizable volume.50
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 some instances the stating of the
theories in testable form) has been accomplished."51
48. S.N. Jain, Freedom of Trade and Commerce and Restraints on the State Power
to Tax Sale in the Course of Interstate Trade and Commerce, 10 J.I.L.I. 547 at 563-64
(1968).
49. Id : at 565-66.
50. Davis, supra note 43 at 142.
51. Ibid.
Upendra Baxi, in an otherwise excellent paper, also seems to comm

the error of suggesting some of the socio-legal research topics witho
stating the objectives or hypotheses from the point of their possible u
to the legal community and law reformers, or how the researches in th
subjects may improve the normative content of the legal system or t
structure of the legal institutions. This is a major weakness of his pape
though, of course, the collection of information on the lines suggested
him may be valuable for its own sake. Taking at random three projec
suggested by Baxi, comments may be made on them. He says :
We do not have organised information on turnover, in number and
type, of legislative enactments in different states ; of time-lags bet-
ween initiation of bills, their passage through the House, the inter-
vening work of joint select committees, and the time-lags between
passage and the gubernatorial or the Presidential assent to the bills.
Much less do we have any information on the quantity of amending
and repealing legislation, or of the private member's bills.52
It is not understood where Baxi wishes to lead a legal researcher or a
reformer from the kind of information that he would like to be collec
that is, what are the goals of such a research ? It may also be said th
with regard to the turnover of legislation it would not be difficult to f
out the same from the annual reports of the Ministries of Law of the state
the state gazettes, and various other private publications. Similarly, w
regard to private member's bills, the facts are common knowledge, tho
we may not have complete and accurate information (and it seems to b
futile task to obtain this kind of "accurate" information). With regar
to the question of time taken and the intervening works of the joint se
committees it is not clear as to what he wants. Does he want qu
passage of Bills, excluding the joint select committees from considerat
of Bills or does he want that there should be greater démocratisation in
sense of greater public participation of the affected interests through
joint select committees ? Here, perhaps, fruitful results may come ou
one were to examine Bills from the latter aspect and concentrate on wh
some cases Bills were referred to the joint select committees but not
others, since consultation of affected interests in enacting a statute i
social goal to be achieved.
Further, Baxi points out: "Nor do we have (although useful beginnin
have been made in this direction by political scientists) much data on t
social profies of national and state legislators".53 Here again one is lef
without any idea as to how this kind of information will be of qualitat
value to law researchers or law makers or how it will help in improving
character and composition of the legislature. Does he want some kind
52. Baxi, supra note 44 at 25.

53. Id. at 26,
1 982] DOCTRINAL AND NON-DOCTRINAL LEGAL RĒSEARCH 357
educational or professional test to be laid down for the legislators ? With

the emergence of the party system and the situation where party discipline
counts more than "intelligence", and the reality of the executive control-
ling the legislature, it is again not understood what useful purpose will be
served by collecting such a kind of information. To some extent the
information on the lines desired by Baxi is available in the various "Who's
Who".54 Further he says :
Disregarding fine distinctions between administrative 'tribunals' and

other administrative adjudicatory bodies, it would be scientifically
rewarding and socially relevant to examine typology of litigants
before a few selected tribunals/bodies.55
One fails to understand how the study of typology of litigants will lead
one to understand the role of the tribunals in the social context, and in
any case it is well known what types of litigants use these tribunals (easy
recourse is one of the virtues of these bodies). The objectives of establis-
hing these bodies are accessibility, cheapness, expertise, expedition and
lack of formality. It would be much more rewarding and useful to study
these bodies with a view to finding out as to how far these social objectives
have been achieved in practice (it may be pertinent to point out that some
work on these lines is being done by the Indian Law Institute).
Perhaps Baxi wants to be modest in his research programme by
suggesting that at the initial stages we should try to gather facts about the
formal legal system, the knowledge of which we seem to lack woefully.
To substantiate him, the author would like to mention an anecdote. A
few years back he was talking to the chairman of a tribunal which has
been in existence for a number of years. He was a man of law. He told the
author that he learnt for the first time that there was sucha tribunal when
he was offered its chairmanship by the government. The suggestion made
by Baxi opens up infinite possibilities for research work and any area or
subject can be taken up for fact collection depending upon the researcher's
own equipment, specialisation and value judgment in terms of priorities.
The author's own priorities will be the study of administrative process
and adjudication including their procedures, administration of the social
welfare legislation and land legislation, and operation of social legislation
like marriage and untouchability.
Finally, a word may be said about research methods in collecting
empirical data. It has been said : "In terms of a gross division, there
are only three methods of obtaining data in social research : one can ask
people questions; one can observe the behavior of persons, groups or
54. See, for instance, Rajya Sab ha, Who's Who (1974). Also see, Socio-Economic
Background of Legislators in India (prepared by Research and Information Service, Lok
Sabha Secretariat), 21 Jour, of Pari . Inf. 23 (1975).
55. Supra note 44 at 31.
organisations, and their products or outcomes; or one can utilise

records or data already gathered for purposes other than on
research."56 The author is not trained in scientific methods of
data and whatever little is said is based on common knowledge. A
legal researcher can get much valuable information by his own ob
and by studying existing records, (here the problem lies in gettin
to the records, since the government is extremely chary of per
anyone to see its records), but a note of warning may be sounde
the method of collecting data by interview. Two broad type
collected through personal interviews are factual information and
and views about a particular matter. About the limits of this m
has been stated :
One of the limitations of the interview is the involvement of the

individual in the data he is reporting and the consequent likelihood
of bias. Even if we assume the individual to be in possession of
certain facts, he may withhold or distort them because to com-
municate them is threatening or in some manner destructive to his
ego. Thus, extremely deviant opinions and behavior, as well as
highly personal data, have long been suspect when obtained by per-
sonal interviews.... Another limitation on the scope of the interview
is the inability of the respondent to provide certain types of informa-
tion.... Memory bias is another factor which renders the respondent
unable to provide accurate information.57
A few other limitations are the problems of communication process,

motivation of the respondent and his general ability > expertise of the inter-
viewer, the clarity of research goals, etc. Comparatively speaking, an
interviewer may be able to get information of much greater utility when
it relates to facts (but not relating to the respondent) than opinions and
views. We have to be extremely cautious with opinionated data collecting.
'Opinion" may mean the opinion of one ignorant individual multiplied by
a certain multiplier of the same quality. This is very aptly demonstrated
by an empirical study of the Indian Law Institute on "Assessing the
Degree and Depth of Acceptance of the System of Law in India in terms
of (i) Awareness, (ii) Value Compatibility, and (iii) Pattern of Adapta-
tion".58 Thus, one of the conclusions of the study is :
It is significant that those categories which have a lower level

of awareness also show a lower degree of acceptance of values
inherent in the present legal systemģ Their views regarding various
procedural matters and problems and bottlenecks in the legal system
also show certain stable patterns. But it is amazing that it is these
56. Festinger and Katz (Ed.), Research Methods in the Behavioral Sciences 241 (1953).
57. Cannell and Kahn, "The Collection ot Data by Interviewing", id. at 330-31.
58. Unpublished (1967).
1982] DOCTRINAL AND NON-DOCTRINAL LEGAL RÉ SEARCH $59
categories which have the highest percentage of those who say that
the present legal system is "perfectly suitable" for Indian society.
This seems rather intriguing. But the explanation perhaps is that
those groups who have higher levels of awareness of the legal
system and who share the values implicit in it to a larger extent,
are at the same time more conscious of its maladjustment with the
overall socio-cultural fabric.59
This study in India was perhaps the first of its kind in the area of
socio-legal research, but it should create an awareness as to what a socio-
legal researcher should not do because of its utter failure to throw any
light on how the Indian legal system is to be improved or adapted to the
value patterns of the Indian people (apart from the value of the study as
signifying some of the too well-known weaknesses or defects of the system).
To conclude, what is stated above is not to undermine the value of the
sociology of law (it can and ought to be used as a valuable supplement or
adjunct to doctrinal research) but to warn against the over-optimism of its
advocates to expect too much from it. To borrow the language from
the International Legal Center monograph Law and Development , "[I]t
is important.... to appreciate the special limits of our contemporary
development theories and to look to social science as an aid but not as a
panacea."60
III. Certain heresies
The opportunity may be availed here to remove two heresies. It has

often been expressed that the legal community has not been concerned with
development (reference is usually made to economic development) or
shown sufficient awareness about it. This criticism seems to be justified
if the idea is to say that lawyers have not been associated with the develop-
ment plans and schemes by the planners and policy makers. But it does
not seem correct to say that lawyers have not concerned themselves with
the problems of development. The major problems, created by develop-
ment, requiring solution by lawyers have been the growth of administrative
power necessitating their control to avoid arbitrariness, and equitable use
and distribution of resources. That the legal community has been deeply
involved with these problems is amply demonstrated by the inclusion of
such courses in the legal pedagogy as administrative law, labour law,
governmental regulation of business, company law and taxation. Even
legal research is not lagging behind in the area of development. A perusal
of a few of the studies produced by the Indian Law Institute should dispel
any doubt in this regard. These are :
(1) Contractual Remedies in Asian Countries; (2) Law oflnter-

59. Id. at 233.
60. Supra note 41 at 23,
360 JOURNAL OF THÉ IND t AŃ LAW INSTITUTE [Vol. 24 : 2 & 3
national Trade Transactions ; (3) Law Relating to Irrigation ;

(4) Some Problems of Monopoly and Company Law ; (5) Govern-
ment Regulation of Private Enterprise ; (6) Interstate Water Disputes
in India ; (7) Law Relating to Flood Control in India ; (8) Law and
Urbanisation in India ; (9) Labour Law and Labour Relations ;
(10) Property Relations in Independent India : Constitutional and
Legal Implications; (11) Cases and Materials on Administrative
Law in India ; (12) Administrative Process under the Essential
Commodities Act ; (13) Interstate Trade Barriers and Sales Tax
Laws in India ; and (14) Administrative Procedure Followed in
Conciliation Proceedings under the Industrial Disputes Act.
The second heresy pertains to the research work done by the Indian
Law Institute. It has been assumed in certain quarters that the Institute
has confined itself only to doctrinal research. Though, it is true to say
that it has given priority to doctrinal research, yet it has not ignored non-
doctrinal research altogether. A number of instances of the latter type of
research can be cited : (1) Disciplinary Proceedings Against Government
Servants - A Case Study : This study is based on field work. "The Insti-
tute's staff studied in detail sixty files (twenty each from the years 1957,
1958 and 1959 which are consecutive files of closed cases for these years)
in connection with Part I and 150 files of closed cases of the quinquennial
period from 1955 in connection with Part II of the study." This data was
further supplemented by more general reports on disposals provided by the
department and by the information gathered from responsible officers
of the department. The research team also attended formal disciplinary
proceedings to gain insight into the operation of the proceedings. (2)
Administrative Procedure Followed in Conciliation Proceedings under the
Industrial Disputes Act : This monograph is based on a study of 373 cases
of failure of conciliation and 421 cases of settlements including award and
mutual settlements to arrive at the conclusions made in the book. (3)
Interstate Water Disputes in India : This study is again based on the actual
case files of interstate water disputes in India and interviews with the
officials concerned at the level of the Central Government. With the help
of these files and interviews the Institute * identified the issues requiring
solution through law and also the real reasons for failure to settle these
disputes through methods other than adjudication. (4) Interstate Trade
Barriers and Sales Tax Laws in India : This study is based on economic
data collected through a questionnaire from the agencies concerned
regarding the impact of the present sales tax laws on interstate commerce.
With the help of economic data it found economic justification for a few
of the provisions in the Central Sales Tax Act. The study also recommen-
ded the creation of an Interstate Taxation Co-ordination Council. This
suggestion was implemented to some extent by the government when in
1968 the Central Government created four regional councils to discharge
practically the same functions as were suggested in case of the Interstate
Taxation Co-ordination Council. (5) Presidential Assent to State Bills -

A Case Study : This study (published as articles in the Journal of the
Indian Law Institute) is based on a study of about 300 state Bills sent by
the states to the centre for presidential assent during the years 1956 to 1965.
(6) Assessing the Degree of Acceptance of the System of Law in India in
terms of(i) Awareness , (//) Value Compatibility , and (iii) Pattern of Adap-
tation. Reference has already been made to this work in the earlier
pages.

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DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH

Author(s): S.N. Jain

I. Doctrinal research and social values

While the traditional theory may appear more plausible in a period

interpretation of existing authorities, rather than in that way

That even in that case-law method of research much creativity goes on

Hardly a rule of today but may be matched by its opposite of

The two outstanding examples of the creativity of doctrinal research

instance, it has been remarked :

The creation of a body of law where none had hitherto existed is a

The writings of Dean Roscoe Pound, however, depict more clearly

For the purpose of understanding the law of today I am content

4. N.D. Grundstein, Administrative Law and the Behavioral and Management

more effective securing of social interests; a continually more com-

At another place he says :

6. Roscoe Pound, Introduction to the Philosophy of Law 47 (1963).

statute, which may appear to be fairly clear at the time of enactment of

In evaluating such elusive factors and forming their own conception

In considering reasonableness of a restriction the task before the courts

8. State of Madras v. V.G. Row , A.I.R. 1952 S.C. 196 at 200.

negligent act",16 "reasonable apprehension",17 "reasonable cause",18

16. S. 304-A of the Indian Penal Code.

premises in the statutory provisions, cases, history in his own rationa

In Jyoti Pershad v. Union Territory of Delhi ,24 the Supreme Court

The criteria for determining the degree of restriction on the right

21. A.I.R. 1955 S.C. 661.

concord and peaceful adjustment and thus furthering the mora

In the famous Golalc Nath v. State of Punjab, 29 Subba Rao, C.J

But, having regard to the past history of our country, it could

The court's concern with social justice is depicted forcefully

This produces anti-democratic effects in that a political party

25. Id. at 1613.

reasonable bounds and not unduly disparate and the electoral

The other objective of limiting expenditure is to eliminate, as far as

Finally, while considering the judges' role in determining questions of

Thus, the objective and philosophy of doctrinal researcher has to be the

29. Id. at 314-15.

II. Sociology of law

30. State of Bombay v. United Motors , supra note 22.

[I]t may be a hundred or several hundred years before we get truly

Secondly, law-sociology research needs a strong base of doctr

[W]e should make clear that we do not denigrate doctrinal research

In India where we still lack the infra-structure of doctrinal research,

44. Upendra Baxi, Sacio-Legal Research in India : A Programschrift 7 (I.C.S.S.R.

control over governmental action or there should be adequate control.

The ultra vires doctrine provides a half-way basis of judicial review

It is beyond the comprehension of the author how we can improve the

not be able to have them at one's command. Coming to a lower p

In determining the validity of a law against a challenge on accoun

In spite of the readiness of the United States Supreme Court to be

Sixthly, though law-sociology research is of recent origin, yet it is

Research on decision-making excites many people, including

The down-to-earth Behavioral Research Council concludes as to

Upendra Baxi, in an otherwise excellent paper, also seems to comm

52. Baxi, supra note 44 at 25.

educational or professional test to be laid down for the legislators ? With

Disregarding fine distinctions between administrative 'tribunals' and

organisations, and their products or outcomes; or one can utilise

One of the limitations of the interview is the involvement of the