CODeL ASSIGNMENT 2022

ACADEMIC YEAR
Student Name Kia Melany Kaumunika

Student number 202064476

Email Address [email protected]
Cell/Tel no +264812019349
CODeL Centre Windhoek Centre

Course/Module Name Course/Module

Code
Research Methodology PRM3762

Assignment no (e.g.
1, 2 or 3, etc.).
2

1
Introduction
It is imperative that legal researchers working with the context of advanced legal
research understand how to explain and justify the process of a dogmatic search.1 The
word dogmaticus means to have a strong belief or opinions about a topic and to assert
those beliefs.2

Doctrinal Research is concerned with the analysis of a particular legal doctrine and
how it was developed and applied. This is purely theoretical research and consists of
either simple research aimed at finding a specific statement of the law or it is a legal
analysis of a legal doctrine that was developed and applied.3 The aim of this specific
type of methodology is to make enquiries in order to specify specific pieces of
information.4

The aims of doctrinal analysis

The aim of doctrinal legal research in it’s broader sense strives the following:

To study case, lase and statutory law, with a view to find law;

Aims at consistency and certainty of law;

To some extent looks into the purpose and policy of law that exists;

Aims to study legal institutions

Looking for systematic formulations of the law in particular contexts;

It aims to attain knowledge of the law but can also change the law;

To some extent looks into the purpose and policy of law that exists 4

1 Ali, S & Z Youssoff. (2017). “Legal Research of Doctrinal and Non-Doctrinal.” Internal Journal in
Research and Development Volume 4(1).
2 (ibid.).
3 (ibid.).
4 (ibid.).

4 Hutchinson & Duncan- Deakin Law Review Volume 17

2
Therefore, doctrinal legal analysis should not be undermined merely because it
revolves around statutes and judicial decisions. It immensely contributes to the
continuity, consistency and certainty of law. It also initiates further development of
legal principles and doctrines.5 Doctrinal legal research mandates the legal researcher
to ‘locate’ the required apt statutory provisions an judicial reflections thereon that have
bearing on the legal doctrine, concept or rule under inquiry. Such legislative provisions
and judicial decisions constitute the basic data for a doctrinal legal researcher.6

Basic tools for analysis

The legal researcher can ‘locate7’ the requisite data in the apt statutory materials and
case reports such as, the relevant Acts of Parliament, secondary or subordinate
legislations (in the form of rules, regulations, orders, notifications, by-laws, and
statutory orders). While case reports refers to that verbatim reproduce cases decided
by courts. Statutory material and case reports constitute primary research tools for
doctrinal legal research.

Outcomes of Doctrinal Analysis

Doctrinal legal analysis has a number of outcomes. A few pertinent among them are
the following:

(a) Doctrinal legal research, which basically involves analysis of legal principles,
concepts or doctrines, their logical ordering and systematizing of legal propositions
emerging therefrom, has some practical utility. It provides quick answers to the
problem as the researcher is continuously engaged in the exposition and analysis of
legislation and case-law and the integration of statutory provisions and judicial
pronouncements into a coherent and workable body of doctrine. It provides lawyers,
judges and others with the tools needed to reach decisions on an immense variety of
problems, usually with very limited time at disposal

5 Khushal & Filipos: Legal Research Methods

6 Ibid
7 Ibid

3
(b) A doctrinal legal researcher, through his analysis, attempts to test the logical
coherence, consistency and technical soundness of a legal proposition or doctrine.
His knitting of legal principles or doctrines, with sound reasoning, may lead to a well-
developed law.

(c) A doctrinal legal research contributes to legal concept or doctrine, and legal
processes in a better way as it offers logical exposition and analysis of such a law or
a doctrine or legal system. Such an analysis also reveals inconsistency or consistency
in, and certainty or uncertainty of the law, legal principles or doctrines.

(d) A student of law indulged in doctrinal legal research, in a systematic way and with
convincing reasoning, exhibits ‘inbuilt’ ‘loopholes’, ‘gaps’, ‘ambiguities’ or
‘inconsistencies’ in the substantive law inquired into as well as in some of principles
or doctrines embodied therein. He thereby invites the Legislature to plug them through
amendments (or to repeal it or substitute it by another piece of legislation if it is with
full of defects or a proved ‘failure’) so that the law can be more purposive and effective.
Such a legislative move, either leading to amending the law or replacing it by another
one, results in the development or improvement of the law. Further, a comparative
analysis of identical legal rules, concepts or doctrines from different systems of law by
a scholar of law gives a further impetus to improvement of the law, legal concept or
doctrine.

(e) A doctrinal legal researcher, through logical ordering and systematizing of legal
propositions that emerged from his analysis and reasoning may initiate a theory in the
concerned field of law.

(f) A doctrinal legal researcher, through his systematic analysis of legal principles or
doctrines, in the light of judicial statements, may predict future of the principle, concept
or doctrine, its contents and directions in which it is likely going to proceed in future.

4
Methodology of Doctrinal Research
Doctrinal or library research is the most common methodology employed by those
undertaking research in law. Doctrinal research asks what I in the laws in a particular
case. 8 The doctrine of legal research is research into legal concept and principle of
all types of cases, statute and rules.9 The doctrinal research is concerned with analysis
of the legal doctrine and how it is developed and applied.7

Doctrinal research, thus involves systematic analysis of statutory provision and of legal
principle involves therein, or derived there from, and logical and rational ordering of
the legal propositions and principles.”10 It also said that doctrinal research is basically
are research into law.9 Mostly the researchers also give the more emphasis on
substantive law rules, doctrines, concept and judicial pronouncements; however the
doctrinal research based on the legal proposition and judicial pronouncement of the
appellants’ courts and other conventional legal material such as parliamentary
debates, revealing the legislative intent, policy and history of the rule or doctrine.”

Similarly, the classical works of legal scholars on administrative law are example of
doctrinal legal research.” These types of research are also called as traditional
research or arm chair research.11

The focus of doctrinal research, as stated before, is on the doctrines that are
developed in a field of enquiry and not on the development of theory through
conventional research. The doctrines are the concepts, rules and principles on which
a field of enquiry is based. 12 The doctrines are normally developed in practice by
reaching consensus by practitioners and other role players through a process of
analysing and synthesising the underlying concepts, principles and rules. Doctrinal
research is therefore relevant in any field of enquiry, such as law where principles and

8 Gawas, V. (2017). “Doctrinal Legal Research Method and Guiding Principle in Reforming the Law and
Legal System towards the Research Development.”
9 (ibid.).
7 (ibid.).
10 (ibid.).
9 (ibid.).
11 (ibid.).

12 Coetsee, D. (2016). “A Doctrinal Research Perspective of Masters Degree Students.” Journal of

School of Sciences, p 2.

5
rules are developed through a process of consensus.13 The developed doctrines are
then regarded as a substitute for theory.13

The systematic investigation of problems and of matters concerned with law such as
codes and acts is legal research. 14 Judges, lawyers, Law Commissions and
researchers constantly do research in law. Moreover, legal researcher can even go
beyond the pure legal issues to study practical problems of the outer world in relation
to law.15

Doctrinal legal research comprises furthermore of in-depth analysis of the legal

doctrine with its development process and legal reasoning whereas non-doctrinal
research seeks various social facts, relationship of law with those facts, impact of law
on society and such.16 Given that it has gained wider acceptance from all quarters of
legal professionals, namely the lawyers, the judges, legal scholars and jurists, doctrinal
legal research has remained as prominent research method in law. 17

Doctrinal legal research has its jurisprudential root on the positive or analytical school
of law. 17 As doctrinal legal research pursues what is the law in specific issue, its
approach is merely analytical, or in other words, influenced jurisprudentially by the
positive school of thought. Doctrinal research is underpinned by positivism and a view
of the world where the law is objective, neutral and fixed. In the words of prominent
jurist of positive school, doctrinal research “takes an internal, participant-oriented
epistemological approach to its object of study.”18

Thus doctrinal legal research is knowledge based research in law rather than research
about law. It does not go through the relationship of law with other disciplines of
society. 19 Though law itself is of the normative character, which prescribes what
people ought to do or what ought not to do, doctrinal research does not dig out the

13 (ibid.).
13 (ibid.).
14 Kharel, A. (2006). Doctrinal Legal Research. Available at https://www.ssrn.com/abstract=3130525;

last seen 08 September 2020.

15 (ibid.).
16 (ibid.).
17 (ibid.).
17 (ibid.).

18 (ibid.).

19 (ibid.).

6
queries on human behaviour, conducts and relationship of law with other social
ingredients.20

As law is a normative science that regulates human conduct and relationship with
backing of sanction and at the same time, stability and certainty of law are social values
to be pursued, this posits doctrinal legal research at the primary concern to legal
researcher.21 Doctrinal legal research attempts to preserve consistency in law on the
basis of legal reasoning. Researcher conducting doctrinal research usually analyses
the existing laws for the sake of stability and certainty in law, which could ultimately
results in consistency in justice delivery.23

As a doctrinal legal researcher does not deal with merely counting the number of laws
related to certain fact, quantitative approach of research does not meet the purpose of
this sort of research. 22 Doctrinal researcher thoroughly analyses the relevant legal
texts to interpret what law exists regarding the particular context and thus the approach
of analysis in doctrinal legal research is always a qualitative one.23

The analytical, legal reasoning aspect of doctrinal research process is necessarily a

qualitative one. The outcome varies according to the expertise of the individual scholar
and cannot be replicated exactly by another researcher. 24 When a researcher
undertakes doctrinal work, it is totally dependent on the voice and experience of the
individual.25 Doctrinal research requires a specific language, extensive knowledge and
a specific set of skills involving precise judgment, detailed description, depth of thought
and accuracy.

CONCLUSION
The objective and philosophy of doctrinal researcher has to be the same as that of
sociological jurisprudence, that is, social engineering through law. Law society

20 (ibid.).
21 (ibid.).
23
(ibid.).
22 Razak, A. (2009). “Understanding Legal Research: Integration and Dissemination.” Faculty of

Economics and Management Journal, p 4.

23 (ibid.).

24 (ibid.).

25 (ibid.).

7
research cannot thrive on a weak infrastructure base of doctrinal type analyses of the
authoritative legal materials. Convergence rather than rivalry between the doctrinal
and non-doctrinal socio legal research could only be the best approach to tackle with
burning problems in the legal field. Both of the legal research method should
complement each other's limitations where applicable.

8
BIBLIOGRAPHY
Books and Journal Articles

Ali, S & Z Youssoff. (2017). “Legal Research of Doctrinal and Non-Doctrinal.” Internal

Journal in Research and Development Volume 4(1)

Coetsee, D. (2016). “A Doctrinal Research Perspective of Masters Degree Students.”

Journal of School of Sciences

Gawas, V. (2017). “Doctrinal Legal Research Method and Guiding Principle in

Reforming the Law and Legal System towards the Research Development.”

Razak, A. (2009). “Understanding Legal Research: Integration and Dissemination.”

Faculty of Economics and Management Journal

Online Sources

Kharel, A. (2006). Doctrinal Legal Research. Available at

https://www.ssrn.com/abstract=3130525; last seen 08 September 2020