Legal Research Methodology: an Introduction

Topics: Law, Scientific method, Common law Pages: 13 (4870 words) Published: July 1, 2011
Legal researchers have always struggled to explain the nature of their activities to colleagues in other disciplines. If Becher’s (1981, p. 111) work continues to represent an accurate account of how academic lawyers are viewed by their peers they have much work still to do in this respect. He found that they were regarded as ‘not really academic … arcane, distant and alien: an appendage to the academic world … vociferous, untrustworthy, immoral, narrow and arrogant’. Their research fared no better, being dismissed as ‘… unexciting, uncreative, and comprising a series of intellectual puzzles scattered among large areas of description’. This chapter therefore presents a welcome opportunity to explain the actual nature of legal research (or ‘legal scholarship’ as it is more usually described) to researchers from the other component disciplines within the built environment. The built environment is usually considered to be an interdisciplinary (or, at the very least, a multidisciplinary) field linking the disciplines of management, economics, law, technology and design (Chynoweth, 2006). The field as a whole can benefit from an improved understanding of each of its component disciplines, and from the greatest possible involvement of each of these in its collective research agendas. The current chapter aims to assist this process in the context of the law discipline. Specifically, it attempts to describe the nature of research within that discipline by reference to the epistemological, methodological and cultural features which distinguish it from other forms of built environment research. The epistemology of legal scholarship.

Legal research styles
There is a dearth of theoretical literature on the nature of legal scholarship and a consequent lack of awareness about what legal scholars actually do. Although there is a tradition of theoretical scholarship (or ‘jurisprudence’) within the law, this tends to address abstract philosophical questions about the nature of law itself. Many lawyers would recognise Bix’s (2003) description of jurisprudence as ‘theorists talking past each other’ and Murphy and Roberts (1987, p. 682) describe its spectacular lack of contribution to the wider discipline in the following terms: legal theory has failed to provide any significant explanation or justification of what academic lawyers do (as is normally demanded of the theoretical component of a discipline) and thus of what academic law is or might be. Nevertheless, in a very different context, Arthurs (1983, pp. 63–71) proposed a useful taxonomy of legal research styles in his report on legal education and research in Canada. This has informed the analysis in this chapter and is represented as a matrix . It will be seen that the vertical axis of the matrix represents the familiar distinction between pure research which is undertaken for a predominantly academic constituency, and applied work which generally serves the professional needs of practitioners and policy makers. However, in the present context, the more interesting distinction is that between doctrinal and interdisciplinary research which is represented by the horizontal axis.

Doctrinal legal research
Doctrinal research (on the right in Figure 3.1) is concerned with the formulation of legal‘doctrines’ through the analysis of legal rules. Within the common law jurisdictions legal rules are to be found within statutes and cases (the sources of law) but it is important to appreciate that they cannot, in themselves, provide a complete statement of the law in any given situation. This can only be ascertained by applying the relevant legal rules to the particular facts of the situation under consideration. As will be discussed below in the section on methodology, deciding on which rules to apply in a particular situation is made easier by the existence of legal doctrines (e.g., the doctrine of consideration within the law of contract). These are systematic...
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