RESEARCH METHODS AND LEGAL WRITINGS

ARTICLE TOPIC: Efficacy of legal research for the growth and development of legal
norms: An Analytical study with USA and INDIA

Submitted to: Submitted by:

Dr. Azim Pathan Meghna Mittal

Date:05-09-2016 SAP ID: 500056145

LLM program

ABSTRACT
Legal research, a vital player in the course of development of a society, underpins the
pressing need for quality research in the country. Legal research is not essentially different
from other types of research. This is too searching for authority to substantiate some
hypothesis and is a probable outcome. Its issues of enquiry naturally relate to pure law or law
in relation to society. India has an important role to play in the world community, especially
in the Asian and African regions. The need for research in inter-American law was
emphasised in the U.S.A. in 1945 and the U.S.A. is bringing out a separate literature on the
subject. Moreover, till now, India has been completely tied down to the chariot wheel of the
English Common law. The Legal research in India can only be understood in the context of
restraints under which it is produced. With notable exceptions, Indian academic legal scholars
are generally ignored by the legal profession, the government and lay public. Deprived funds
and resources, they struggle for efficiency, style and effect. Independent India has
demonstrated a very strong commitment to law and the development of legal doctrine.
Opinions vary on whether this was intended to achieve distributive justice or to conceal
patterns of legal suppression. There was a new Constitution but only a 'scissor and paste'
cosmopolitan jurisprudence to interpret it. Mature legal research has largely been produced
under the support of endowment lectures, of which the most celebrated are the Tagore Law
Lectures, begun in the latter part of the 19th century. As new law schools were established
throughout the country, there were new possibilities for research. The least productive area of
research was the codified part of private and commercial law. Personal law produced some
research as it interacted with the framework of the Hindu Code. The codification of Indian
law in the 19th century created a tribe of digest and practitioner textbook writers. The
textbook writers included well-known names like Pollock, Mulla (later in the Privy Council),
Hari Singh Gaur and Ameer Ali. These classics, reflecting an Indian 'black letter' law
tradition, continue to be edited by eminent judges and practicing lawyers. Legal scholars and
lawyers were always interested in legal reform and development and adaption of law in
accordance with the changing needs of society. This paper focuses on how legal research has
been evolved in the society and its effects in the development of legal system.

Keywords – legal research, India and USA, efficacy, legal doctrine

Introduction

All advancement is born of inquiry. Disbelief is often better than overconfidence, for it
directs to inquiry, and inquiry guides to invention. Research in simple terms, can be defined
as systematic investigation towards increasing the summation of human knowledge and as a
process of identifying and investigating a fact or a problem with a view to gaining an insight
into it or finding an appropriate solution therefore. An approach becomes systematic when a
researcher trails convinced scientific methods.
In this perspective legal research may be defined as systematic finding law on a meticulous
point and making encroachment in the science of law. However, the finding law is not so
easy. It entails a methodical search of legal resources, constitutional, subsidiary and judicial
proclamations. For making advancement in the discipline of law, one needs to depart into the
fundamental principles or grounds of the law. These activities warrant an organized approach.
An approach befalls organized when a researcher follows scientific method.
Generally, law is influenced by the established societal principles and ethos. Many times law
also attempts to mould or change the existing societal principles and stances. Such an
intricate nature of law and its operation require systematic approach to the understanding of
law and its functioning facades. A methodical investigation into these facets of law aids in
knowing the alive and emerging parliamentary strategies, laws, their societal significance and
efficacy etc.
In this backdrop, the present course on Legal Research Methods aims to notify the
apprentices of law with scientific means of inquiry into law. It also aims to make them
proverbial with nature, extent and implication of legal research. In addition, it endeavours to
make them cognisant of role of legal research in the maturity of law and legal institutions.

Law and society

All collective human life is directly or indirectly shaped by law. Law does not operate in a
vacuum. It has to reflect social values, attitudes and behaviour. Societal values and norms,
directly or indirectly, influence law. Law also endeavours to mould and control these values,
attitudes and behavioural patterns so that they flow in a proper channel. Law, therefore, can
be perceived as indicating the communal assertion of societal facts and norms as well as way
of societal control and an instrument of social change.
Law is not, nor can any discipline be, an insular one. Each rule postulates a factual situation
of life to which the rule is to be applied to produce a certain outcome. However, the societal
values and patterns are vibrant and multifaceted. These varying societal values and ethos
obviously make the discipline of law dynamic and complex. Law, therefore, has to be
dynamic. Such a complex nature of law and its operation require systematic approach to the
understanding of law and its functioning facades. A methodical investigation into these
aspects of law helps in knowing the existing and rising legislative guidelines, laws, and their
collective significance.
The basic tenet of Marxian approach to law is that, law, although social system configures it,
is an instrument in the hands of the classes in power to use it to protect their own interests.
The class in power uses law to exploit powerless classes. While Roscoe Pound insists that
law is a tool of social engineering. He asserts that law can be an effective tool for establishing
an egalitarian social order.

LEGAL RESEARCH

Legal research may be defined as systematic investigation towards escalating the sum of
acquaintance of law. Though, a scholar has remarked that this definition is too broad and
lacks articulation and anticipated a diverse definition.

He observed: Research may be labelled as systematic fact-finding that is, to find what the law
is on a meticulous summit and progression of the science of law. In a strict sense, legal
research is implicit as restricted to those works which contribute to the development of legal
science. This is an excessively narrow view of research and we need not adopt such a
restricted definition of legal research. Yet the fact-finding is not as easy as it may seem. First,
a researcher has to go into the diverse constitutional stipulations and the rules made there
under. Secondly, he may have to examine the mass of case-law which may have accrued on
the point in issue, and it is not an easy matter to derive a clear cut legal proposition from the
scrambled mass of case-law.

To precede the science of law, it is necessary for a researcher to go into the essential
principles or reasons of the law. The exploration will have to be: Why a particular rule? What
led to its adoption? What are its effects? Whether it is appropriate to the present conditions?
How can it be improved? Whether it needs to be replaced entirely by a novel rule?
Thus, the phrase legal research take into its ambit a systematic finding or establishing law on
the notorious subject matter or in the given area as well as an inquiry into law with a view to
making progression in the science of law.
Finding law on a particular subject, as stated earlier, is not an easy task. There may be a
number of verdicts as well as constitutional provisions scattered in different verdicts with
numerous revisions on the subject underneath inquiry. In addition, these verdicts and
legislative provisions may be supplemented from time to time by an immensity of rules,
regulations, briefings, directives and regime resolutions. Similarly, one predominantly in the
frequent law authorities necessitates looking for driving judicial pronouncements of the
higher judicial institutions interpreting these provisions for finding accurate sense and ambit
of the legal provisions. A quest for making advancement in the science of law requires a legal
researcher to thoroughly probe into core principles of and reasons for law. Thus, legal
research has a very extensive scope as it, in ultimate analysis, involves an inquiry into one or
the other dimension or aspect of law. Legal research is, thus, the procedure of discovering
and regaining information essential to shore up legal decision-making. It includes in it each
stage of a course of action that commences with an analysis of the facts of a problem and
concludes with the application and communication of the results of the investigation.

IMPORTANCE OF LEGAL RESEARCH

Law, as expressed prior, does not drive in a vacuum. It drives in a multifaceted social setting.
It reflects social states of mind and conduct. It likewise tries to form and control social states
of mind and conduct of individuals to guarantee that they stream the normal channel.
Notwithstanding, social qualities and states of mind, existing and also expected, continue
evolving. It makes the law to be dynamic and adapt to the changing social ethos. Further,
progressing logical and mechanical improvements add to these complexities by making new
complex human relationship that necessities law to manage.

In such situations, legal research, inter alia, becomes necessary: (i)for ascertainment of law
on a given topic or subject, (ii) to highlight ambiguities and inbuilt weaknesses of law, (iii) to
critically examine legal provisions, principles or doctrines with a view to see consistency,
coherence and stability of law and its underlying policy, (iv) to undertake social audit of law
with a view to highlighting its pre-legislative ‘forces’ and post-legislative ‘impacts’, and (v)
to make suggestions for improvements in, and development of, law.

1. Ascertainment of law
It is needless to mention that laws can never be perfect and final in a dynamic society: they
are not always even intelligible, and if intelligible, not always intelligently made.
Therefore, a systematic effort is required to ascertain or find law on a given subject/topic. He
requires not just to find and to investigate significant Act(s) of Parliament additionally to find
pertinent auxiliary authoritative instruments as standards, controls, orders, bearings, notices,
and byelaws and legal professions subsequently. It involves basic experience that these
administrative instruments are scattered and are not effectively traceable. More than one Acts
may have bearing on the subject under study. He, subsequently, should be more watchful in
finding these laws. The vast majority of the backup authoritative instruments are not
distributed on time in Official Gazette. A large portion of the times they are distributed after
they have come into drive. A plenty of legal affirmations of various higher legal
establishments including of the summit court adds to the trouble in ascertainment of law.

2. Highlighting inbuilt ‘gaps’ and ‘ambiguities’

No lawful dialect or expression, howsoever a lawful drafter might be watchful, visionary and
talented specialist can be flawless and be competent to take everlastingly into its ambit all the
future possibility and conditions. In some cases, an arrangement may not, as far as its style or
sober minded operation, apropos fit into general authoritative plan of the Act or match with
its different arrangements or arrangements of different Acts.
A legal researcher, through systematic analysis, may be able to highlight these ‘gaps’ and
inbuilt weaknesses of the Act or its provisions.

3. Determining consistency, coherence and stability of law

A legal researcher, through basic examination of lawful recommendations, guidelines and
tenets exemplified in that, in the light of elucidations thereof and administrative arrangement
of the statute, can, with adept investigation and supporting thinking, show consistency and
intelligibility or generally of a given law. Such an examination helps in the advancement of
law, lawful arrangement or tenet, all things considered.

4. Social auditing of law

Legal research is also necessary for taking pre-legislative social audit of law as it helps to
understand and appreciate the social forces that played significant role in the making of given
law in its present form. Such an understanding enables us to know the social stakes that law
intends to protect or change and reasons therefor. It helps to appreciate foundation of the
given law and its legislative target and strategy. Such an audit helps us to find out as to
whether a given law is assimilated in the society and is (or is not) serving the needs of the
society. It also loosens the reasons or factors that are responsible for making a given law a
mere symbolic or a failure in attaining its intended legislative goal(s). It also enables us to
predict future of the law.

5. Suggesting reforms in law

In the light of underlying legislative policy of a Statute and the highlighted inbuilt
shortcomings or irregularities thereof, a legal researcher can easily offer concrete
recommendation or proposals for reform or improvement in the given law. By undertaking
analytical, historical and comparative research, he can also frame his bids for reform in
particular terms. Analytical research deals with the contemporary. Historical research, on the
other hand, deals with the past and it constitutes an investigation into historical antecedents
and fruition of law. The past often explains the present, most brightly. It unveils the reasons
for their dismissal and for approval of the present ones. Historical research often shows that a
particular existing legal provision, rule or doctrine, fully justifiable at the time when it was
introduced or adapted, is no longer so justifiable because the reasons or circumstances that
justified the original enclosure of that provision, rule or doctrine are no longer valid or exist.
While comparative research aims at finding parallels from other jurisdictions.

WHO DOES LEGAL RESEARCH?

Obviously, anyone, who is inquisitive to ‘know’ something about a particular ‘law’ and/or its
operational facets and is eager to work hard to ‘know’ or ‘unearth’ it, can be a legal
researcher. He may be a sociologist, an historian, a political scientist, a social anthropologist,
an economist, or a legal philosopher. But as an occupational exercise, legal research needs to
be undertaken by Legislators, Judges, Lawyers, and Legal Academia (law teachers and
students).

In fact, the nature of professional obligation forces these persons to get themselves pandered
into legal research, though for a living, besides improvement of their profession and attaining
the purpose of legal research.

1. By a Legislator
Law is not sui generis. Legislators do not legislate at random. They additionally don't
administer basically in light of the fact that they are approved or committed to authorize laws.
Under ordinary conditions, the practice of administrative power by them is neither ex
tempore nor unintentionally. They order "law" purposely to meet one of the common "needs"
of the general public. An authoritative establishment, consequently, has some 'social reason'
behind

Legislators have to plump the areas that are defenseless to legislative treatment. They have
additionally to choose with reference to whether the proposed administrative measure
enhances the condition of things or the current social practice. Plan of an authoritative
measure, for the most part, goes before a consider "finding" of an "issue" requiring
administrative reaction. At that point it takes after by "finding" able conceivable option
approaches to be taken after or measures to be taken and a watchful near appraisal of
adequacy of every one of the distinguished choices for achieving the "expected" results
through law.

Lawmakers may also have to ‘look’ at the ‘identical law’ and its ‘raison d’etre’, if any,
prevailing in other countries while designing legislative framework of the proposed law.
They may have likewise to truly take a gander at the "disappointment" as well as
"accomplishment" of such 'remote law' and to recognize the components mindful therefor,
assuming any, so they can do path with the elements while drafting the law at their hand. This
clearly obliges them to have, in any event, working aptitude of "finding" and "evaluating" of
the law from outside locale. Such a pursuit will empower them to distinguish the essential
standards, conventions and authoritative methodology received in the indistinguishable
abroad law and subsequently to see the attainability of embracing, with vital adjustments,
them in the proposed enactment. Comparative is the situation when they need to change
either the current enactment or a statutory arrangement or to nullification it.

2. By a Judge
Traditionally, a Judge, who essentially acts as an arbiter, needs to locate the most
pertinent rules and standards of law from statutes and statutory instruments contended by
the challenging gatherings, and to apply them to the discussion or lis brought before him.
He is relied upon to "discover" recommendations and standards of "law" and to choose
their "respectability" and "pertinence" to the current question. Such a practice clearly
obliges him to make an "inquiry" for material "govern" and 'legitimate rule'. He has
additionally to give "reasons" for grabbing a "lead" as a "proper" one and rationale
behind it.

3. By a Lawyer
A practicing lawyer, as profession, has to advise his clients and to plead cases on their behalf
in the court of law. He, sometimes, is also required to give legal opinion on the matter
referred to him by his client. A legal practitioner, who is called upon to give his legal opinion,
is also required, as a part of his profession, to undertake a systematic search for ‘finding’ law
and thereby to form his ‘opinion’ based thereon. In order to discharge these professional
commitments, a lawyer has obviously to engage himself in searching law, propositions of
law, and precedent (if required).

However, at times, finding law on a particular topic or issue is not an easy task. A number of
statutes and/or statutory provisions on the given topic; frequent amendments thereto;
enormous subsidiary legislation in the form of rules, regulations, orders, notifications, or
byelaws supplementing the substantive law make the task of finding law more difficult for
the lawyer in his efforts to know law. Further, most of the times, Legislature, sometimes,
draft law in an ambiguous language that can be subjected to equally convincing more than
one interpretation. A lawyer, therefore, has to go into the legislative policy and intent of law
for ‘knowing’ the law accurately and identifying and appreciating the underlying legal
principles so that he can argue favourably for his client.

4. By a Law Teacher and Student of Law

Legal research is indispensable for legal academia (law teachers and students). They are
required to undertake legal research as a part of their professional commitment. There is a
close connection between teaching law and legal research. A law teacher has to keep a
vigilant track of ‘developments’ in the ‘law’ for making his lectures and deliberations in the
class-room contextually and contemporarily relevant. He has also to make himself familiar
with the ‘legislative intent and policy’ of the ‘black-letter rules’ and their raison d'etre so that
he can help his students to appreciate the rules in a systematic and comprehensive manner. It
will also help him and his students to ‘think’ and ‘formulate’ an alternative rule, if the
existing one, in their opinion, is unwarranted, undesirable or ineffective. It may trigger off
some ‘new approaches’ to the law or ‘original ideas’ about a specific rule or legal principle.
A law teacher is also expected to inculcate a degree of legal craftsmanship in his students and
to help them realize the potential of law as a tool of social engineering, social change and an
instrument of social control. Most of the modern Law Schools and Law Universities, that
have predominantly designed their curricula on the patterns of American and British Law
Schools, require their students to undertake original research as one of the pre-requisites for
obtaining their degree -LL.B., LL.B. (Honours) and/or LL.M. The students’ research, as a
mandatory component of a course/degree. In fact, modern University Law Schools and Law
Colleges, which are engaged in the making of future generation of legal professionals and
practicing as well as academic lawyers (and in turn prosecutors and judges), are ideally
required not only to be centres of legal education but also centres of legal scholarship and
research. These institutions are required to inculcate in their students some habit of legal
writing and research so that scholars may contribute to an understanding of law and
government and may participate creatively in their growth and improvement.
All legal research is drawn from three kinds of resources: primary, secondary, and evidential.
Primary resources generally refer to the rule of law, or letter of the law, or in simplest terms,
laws as they are written. Secondary resources are anything for which supports legal research
other than the specific words of the law, and as a result it can be a very broad category.
Evidential refers to the physical, material, or testimonial elements that become part of a case
and subsequently part of a legal argument; in simple terms, evidence.

An Analytical study with USA and INDIA

Legal systems in the United States were originally centered around case law, or judge-made
law. The term common law refers to judge-made law that is found in judicial opinions.
Judges hear cases involving particular parties, then issue decisions based on available
precedent and on their own initiative in the absence of prior decisions. The notion that a
common law existed that reflected the generally accepted values and practices of a society,
and upon which judges drew to decide individual disputes, was behind this reliance on judge-
made law. The law in some subject areas still consists primarily of common law. In recent
years, however, legislatures and administrative agencies have become much more active in
the law-making process. Present-day legislatures adopt statutes affecting a broad range of
activities. Some of these statutes may pre-empt earlier court decisions, either as a result of
a deliberate action on the part of a legislature or inadvertently.

In the case of India, the number of cases decided by courts and has continued to growing
recent years through legal research India issues. The National Legal Research Desk (NLRD)
has been instituted to strengthen the implementation of the laws related to Women and
Children in India. NLRD focuses on documenting the recent changes in the law, collect and
compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts
and ensure wide scale dissemination of the same through the government and the non
government machinery. The NLRD will work with Law Enforcement Agencies, Police
Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil
Society and Mass Media on promoting Access to Justice for Women and Children. The
NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource
materials on Violence against Women and Children in India. In the first phase (2012) it will
focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape
Laws, PCPNDT Act, Honour Crimes and Victim Compensation.t

The Law Commission of India was 170 LEGAL RESEARCH AND METHODOLOGY
constituted for recommending reforms in the law. The Indian Law Institute, the Indian
Institute of Constitutional and Parliamentary Studies and the Indian Society of International
Law were established for research and other purposes.

The University Grants Commission(UGC) and the Indian Council of Social Science Research
(ICSSR) (eventually)initiated the funding and encouragement of legal research, its planning
and publication. The practice of holding law seminars by universities and other forums was
initiated. Institutional framework, and need and motivation for legal research, which were
lacking in the early colonial and later colonial phases, now clearly came into existence. As
could be expected, legal research increased both at governmental and non-governmental
level. As mentioned earlier, the Law Commission is an advisory research body to help the
government in the task of law reform and to keep it up to date. But factual evidence of
acceptance of the commission's recommendations or even the other focal point of legal
research activity, as mentioned earlier, is located outside the governmental system i.e., in the
university departments of law and a couple of autonomous research institutes. With the
elevation of law as an academic discipline, the responsibility for legal research has rightly
come to the academic lawyer. An Indian law teacher
of a university department is no more expected merely to teach, but also to be a researcher.
The problem of collection of data becomes still more acute when an analysis of a legal issue
is attempted in a multi-dimensional manner and the perspective of enquiry is extended over
disciplines other than law. Absolute lack of interdisciplinary communication makes it
impossible for the legal researcher to be aware of non-legal materials, research findings or
Funding facilities for supporting legal research are most inadequate in India. Till recently,
they did not exist at all. Lately, the UGC and the ICSSR have begun to finance legal research
projects. UGC as a funding forum ought to prove as a very suitable facility. However, for
various reasons, it remains as yet little utilised by the law
researcher in the country. Probably it needs to be more advertised and special efforts have to
be made to ensure its access to a larger number of researchers.
The Journal of the Indian Law Institute is the only standard Indian publication which accepts
writings in all areas of law. But a single journal can hardly cater to the requirement of the
entire research community.

Conclusion

Despite the importance of legal research in legal practice. legal research doesn’t hold the
appeal of some topics, like constitutional or criminal law. Legal research also requires more
hands-on work, which rarely evokes endearment from law students. Many students even have
the mistaken notion that legal research is easy.

References
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Legal Research and Legal System, October 2008

Dr. Sope Williams-Elegbe and Edefe Ojomo, Stellenbosch University, South Africa, and University of
Lagos, Nigeria, introduction to legal research, February2013

Prof (Dr) Khushal Vibhute& Filipos Aynale m, Justice and Legal System Research Institute, Legal
Research Methods,2009

Upendra baxi, "SOCIO-LEGAL RESEARCH IN INDIA—A PROGRAMSCHRIFT.

Rajkumar Agrawala, legal research and methodology, indian legal research: an evolutionary and perspective
analysis,138-183(2014)

SHASHI KANT & M. AFZAL WANI, Legal Research and Methodology, Indian Law Institute, New Delhi
(2015).

Rajeev Dhavan, Legal Research in India: The Role of the Indian Law Institute. 34(3) The American Journal of
Comparative Law, 527–549 (1986)

Justice Y.K. Sabharwal, Chief Justice of India, ROLE OF JUDICIARY IN GOOD GOVERNANCE,
file:///C:/Users/500056145/Downloads/ROLE%20OF%20JUDICAL.pdf

Aj Blechner, Harvard law school library, Free Legal Research Resources, Aug. 26,2016