TABLE OF CONTENTS

Contents Page No.

1. Introduction 2

1.1 Overview

1.2 Literature Review

1.3 Research Question

1.4 Scope and Objective

1.5 Research Methodology

2. Doctrinal research 5

3. Non-doctrinal research 11

4. Distinction between doctrinal and non-doctrinal research 15

5. Conclusion 17

BIBLIOGRAPHY 18

1
 INTRODUCTION

1.1 Overview

This project will discuss doctrinal and non-doctrinal legal research to inform how to write with
understanding regarding the advantages, disadvantages, and the comparisons between doctrinal
and non-doctrinal legal research. Thus, researchers need to be able to interpret methodology in
similar terms to those used by other disciplines. The word doctrinal is derived from the word
"doctrine," which is Latin for the word "doctrine," which means education, knowledge or
learning.

There are different methods of research that may be applicable in law. They can be
characterized as multidisciplinary, doctrinal, empirical or non-doctrinal research.

Usually legal research is divided into doctrinal and non-doctrinal research. A universally
accepted concept is that non-doctrinal can be qualitative or quantitative while doctrinal is
qualitative since it does not involve statistical analysis of the data. In a research both types of
research may overlap. There is different format of legal research – either doctrinal or non-
doctrinal or a combination of both. Doctrinal and non-doctrinal research could be part of a
large-scale project. Both approaches should be regarded as complementary to each other and
may be applied for legal reform or amendment.

2
1.2 Literature Review

1. Legal Education & Research Methodology, Dr. Mona Purohit, first edition: Published by
Central Law Publications 107, Darbhanga Castle, Allahabad.
This book explains the various forms of research and the processes in terms of which
research is carried out. It helps to understand the basics of research and to use the methods for
doing real and professional research. It covers all areas from discussion methods to problem
solving methods. The future of legal education and the manner in which it should be carried on
is also depicted in detail. Overall the book is extremely helpful to gather knowledge about legal
research and methodology.
2. Legal Research Methodology, T. Padma, published by: Asia Law House, Hyderabad.
This book explains the various forms of research and the methods to be used. Legal
research methodology is discussed in details in this book and also an insight has been put
forward as to how carry on the process of research.

1.3 Research Question

1. What is doctrinal research and what are the features, merits and demerits of doctrinal
research?
2. What is non-doctrinal research and what are the features, merits and demerits of non-
doctrinal research?
3. What are the differences between doctrinal and non-doctrinal research?

1.4 Scope and Objective

Scope
This project study mainly features, merits, demerits and sources of doctrinal and non-

doctrinal research.

Objective
1. To study relevance of doctrinal research.
2. To study relevance of non-doctrinal research.

3. To study difference between doctrinal and non-doctrinal research.

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1.5 Research Methodology
Approach to Research: In this project doctrinal research was involved. Doctrinal Research is
a research in which secondary sources are used and materials are collected from libraries,
archives, etc. Books, journals, articles were used while making this project.

Types of Research: Explanatory type of research was used in this project, because the project
topic was not relatively new and unheard of and also because various concepts were needed to
be explained.

Sources of Data collection: Secondary source of data collection was used which involves in
collection of data from books, articles, websites, etc. No surveys or case studies were
conducted.

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 DOCTRINAL RESEARCH

It involves analysis of case law, arranging, ordering and systematizing legal proposition and
study of legal institutions, but it does more-it creates law and its major tool (but not the only
tool) through legal reasoning or rational deductions.1 In the opinion of Boomin, this kind of
research 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.2

This kind of search is carried on by all the judges, lawyers and law teachers.

The two most important examples of traditional research are the law of torts and administrative
law. These two areas of law have been developed by the judges rather than the theoretical
researchers. According to Cardozo3 law or legal propositions are not final or absolute. They
are in the state of becoming. Accepted norms or principle of justice, equity and good conscience
are applied again to test its veracity or authenticity as a true principle of law. If it is found to
be unjust, it may be modified or changed to meet the present requirement, for example, the
Indian Penal Code, 1860 had declared that an attempt to commit suicide is an offence and the
person attempt to commit suicide is an offence and the person attempting to do so is punishable
under that law. But in Nagbushan Patnaik’s case4 the Supreme Court had declared this
provision is unconstitutional as it is in violation of Article 21 of the Constitution of India which
confers on the people, the right to personal liberty. As interpreted by the Supreme Court the
right to personal liberty under Article includes the right to die as well and hence a person
attempting to commit suicide cannot be punished under that section of Indian Penal Code.

The Supreme Court has observed as follows:

“Section 309 of the Penal Code deserves to be effaced the statute book to humanize our penal
laws. It is a cruel and irrational provision and it may result in punishing a person again (doubly)
who has suffered agony and would be undergoing ignoring because of his failure to commit
suicide. Then an act of suicide cannot be said to be against religion, morality or public policy
and an act of attempted suicide or attempt to commit it causes no harm to others, because of
which states interference with the personal liberty of the concerned person is not called for.

1
S.N. Jain: Doctrinal and Non-doctrinal Legal Research, 14 JILI 487 (1972).
2
Concerning the Relation of Logic to Law, 17 Jour of Legal Education, 155 at P. 158-159 (1964-65).
3
The Nature of Judicial Process, 23 (1921).
4
P. Rathinam Nagbhooshan Patnaik’s v. Union of India and another, A.I.R. 1994 Page 1844.

5
Thus Section 309 of the IPC violates Art. 21 and so, it is void. May it be said that such view
would advance not only the cause of humanization, which is a need of the day, but of
globalization also, adverse sociological effects are caused by the death of the concerned person
and not by one who had tried to commit suicide, indeed, those who fail in their attempts become
available to be more or less as useful to the family as they were. So, the person to be punished
is one who had committed suicide but he is beyond the reach of law and cannot be punished.
This provide no punish a person who should not be punished.”

The problem of suicide is of controvertible nature the question whether a person is free to
choose the manner and time of his own death has generated thought provoking debate for a
long time. As the latest decision of the Supreme Court on the point. Gian Kaur v. State of
Punjab lays down, life is considered the most precious commodity and every effort has to be
made to preserve it. The Court, in the instant case, made it clear that the right to life, including
the right to live with human dignity would mean the existence of such right up to the end of
natural life. This also includes the right to a dignified life up to the point of death including a
dignified procedure of death. The Supreme Court also reversed its earlier judgement in the
Rathinam Case and held that the right to life does not includes right to die.

Commenting on Administrative Law, Grundstein has observed:

“The creation of a body of law where none had hitherto existed is a social achievement. It is to
be an achievement not to be underestimated. 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 justifiable a paramount concern of legal research.”5

Apart from this our statutory law, is replace with such phrase or vocabularies which have no
definite answer for all situations. The Courts have been given the discretion to interpret and
apply them so as to sub serves the social need, e.g., ‘just and equitable’, ‘rash or negligence
act’, ‘reasonable apprehension’, ‘industry’, etc. while interpreting these phrases. The judiciary

5
N.D. Grundstein Administrative Law and the Behavioural and Management Sciences. 17 Journal of Legal
Education – 122 (1964-65).

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itself has evolved certain norms which are vague and flexible6 which can be made certain
workable by evolving principle on the basis of research.

Ours is a welfare society is to adjust the conflicting interest of various components of the
society by applying the principle of ‘reasonable classification.7 But what is reasonable
classification is in itself a matter of discussion and debate. Here the researcher can find out as
to what standard can be termed as reasonable classification. Likewise, as to what can precisely
be termed as ‘basic structure’ of the Constitution is not clear. It can be determined by making
a thorough enquiry into it, the task of a doctrinal researcher is not a purely mechanical one.
While inferring a principle on the basis of available knowledge in the area of research, he may
apply logic, ethics, and requirements of the day and out of several alternatives, he may choose
the best one, i.e. the one which best serves the interest of the society. In modern context, the
doctrinal researcher has to find out and purpose those principles, rules and regulations which
can serve the purposes what Roscoe Pound has termed as ‘social engineering’ as well as the
existing doctrine/principles of law may become certain and stable so that social goals may
achieved. If the researcher happens to be a judge, he can give concrete shape and stability to
the legal principles by applying the principle of review or revision or overruling. A good
number of cases may be cited to substantiate this point of view, e.g. Shankeri Prasad8 and
Sajjan Singh’s cases9 were overruled by Golak Nath Case10 which was subsequently overruled
in Keshavanand Bharti case.11 Similarly, a definite shape was provided by the Supreme court
to the right of personal liberty as given in Article 21 of the Constitution in A.K Gopalan’s
case12, but its scope was widened in Menaka Ghandhi13 and in subsequent other cases because
the court was convinced that with the passage of time the meaning and scope of the right to
personal liberty has considerably widened since its decision in A.K Gopalan’s case.

The court has introduced charges not only in the area of constitutional law, but also in the area
of Labour law, criminal law as well as property law. The courts have held that death sentence
should not be imposed in all cases in which the offence of murder is established, but rarely of
rare cases. Death penalty is now an exception, life imprisonment is the rule.14 Not only this the

6
S.N. Jain Doctrinal and Non-Doctrinal Legal Research, 14 JILI 487 (1972).
7
Western U.P. Electric Power and Supply Co. Ltd. V. U.P. AIR 1970 SC 21.
8
A.I.R. 1951 S.C. 458.
9
A.I.R. 1965 S.C. 845.
10
A.I.R. 1967 S.C. 1643.
11
A.I.R. 1973 S.C. 1461.
12
A.I.R. 1950 S.C. 27.
13
A.I.R. 1978 S.C. 597.
14
Jagmohan Singh v. Uttar Pradesh, A.I.R., S.C. 947

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execution of death sentence in public has been held to be a barbaric act 15 and that the person
sentenced to death to also entitled to procedural fairness till the breath of his life.16 The Court
has also recognized the right to die17 and hence an attempt to commit suicide is more an
offence.18 Although in a recent judgement in Gyan Kaur v. State of Punjab and others, the
Supreme Court has reversed this judgement and has held that the attempt to commit suicide is
a punishable offence.19

Most of the works of doctrinal researchers result in some concrete proposals for problem in
hand, but sometimes, it fails, especially where the subject is growing very fast or when the
research was undertaken merely to test the logical consistency and technical soundness of a
proposition.

Sources of doctrinal research:

Ordinarily conventional legal sources are used in doctrinal research. Scholar undertaking
doctrinal research takes secondary data relevant to his proposition. His sources not only include
statutes or enactments but also reports of committees; legal history, judgement etc. Acts passed
by state legislatures and parliament comes under this category of sources. Judgements of
Supreme Court and High Court also come under above mentioned sources. They have primary
authority. Text books, periodicals, commentaries also come under sources of doctrinal research
but they are not as authentic as original sources like enactment and case published by
authorized publisher.

i) Features of doctrinal research

The following are the essentials feature of doctrinal research:20

(a) the scholar organizes his study around legal proposition; and

(b) appellate Court reports and other conventional legal materials and readily accessible.

(c) legal propositions from enactment, administrative rules or regulations, cases of courts can
be a part of doctrinal research.

15
Attorney General of India v. Lachma Devi, A.I.R. 1986 S.C. 467.
16
Trivenihen v. State of Gujrat, A.I.R. 1989 S.C. 142.
17
State of Maharashtra v. S.P. Dubal: The Hindustan Times, Oct. 12, 1986.
18
P. Rathinam, Nag Bhooshan Patnaik v. Union of India and another, A.I.R. 1994 P. 1844.
19
AIR 1996 Supreme Court, 1660/Per Mr. J.J.S Verma, G.N. Ray. N.P. Singh. Uddin and G.T. Nanavati.
20
Earnest M. Jones: Some current Trends in Legal Research, 15 journals of Legal Education, 121-138 (1962-
63).

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Doctrinal research looks at the following issue

1. The aim of preferred values.

2. The problem posed by the gap between the policy goal and the present state of achievement.

3. Availability of attentive for the implementation of goals.

4. The prediction and consequences that were made. (Myneni, S.R. 2004, p. 36).

ii) Advantages of doctrinal research

(a) It provides lawyers, judges and others with the tools needed to reach decisions on immense
variety of problems within a limited time frame.

(b) It provides sound background for outstanding scholarship and it helps in smooth functioning
of the legal system of the society.

(c) When the question arises as to what course, the law should follow, the doctrinal research
may provide appropriate guidance and hence it is of informational value.

(d) There are certain concepts, e.g. ultra vires doctrine which can be improved only by doctrinal
research.

(e) It is more flexible in character and hence it can be stretched to any extent to make it
workable.

iii) Disadvantages

(a) As law is intended for society, it operates in society and, therefore, knowledge of social
policy, facts and social value in essential for the researcher. If he lacks in these, his research
cannot be of great value. It he, likewise, fails to test his ideas, presumptions from other sources,
e.g. sociological data, his works will not be of great significance.

(b) A doctrinal researcher faces difficulties in giving concrete shape to his work because too
many presumptions may be drawn from the materials at his disposal.

(c) A doctrinal researcher analysis legislation, case laws, and customary principles to draw his
inferences, but if he fails to take into account the reference and context of the legislation,
precedent and custom, his work may not be worthy of laying down any general proposition.

(d) The language of law is difficult to understand and to interpret. If he is not well conversant
with the rules of construction and interpretation the entire idea expressed by him, to his

9
astonishment, may be given a different and altogether absurd meaning, which will render his
work a ‘bogus’ one.

The doctrinal research in spite of the above-mentioned demerits is still most suited to lay down
a general principle of law, but its practicability and usefulness may be accepted if it turns out
to be a well-researched work explicitly putting forth its reference and context. In this kind of
research, the role of law liberty is most important as it proceeds on the basis of material stored
and collected therein.

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 NON-DOCTRINAL RESEARCH

Unlike in the case of doctrinal research is carried on, on the basis of facts and data, stored in
the library, archives and other data base, the empirical research is carried on by collecting or
gathering information by first hand study of the subject. It relies on experience or observation
without due regard to any theory or system and hence it is also called as experimental research.
In this type of research, researcher attempts to investigate effect or impact by actual
examination or observation of the functioning of law and legal institutions in the society.
According to late Prof. S.N. Jain,21 it seeks to answer such questions as are law and legal
institutions serving the needs of society? Are they suited to the society in which they are
operating? What factors influence the decision of adjudicators (courts of administrative
agencies)? It also concerns with the identification and creating an awareness of the new
problems which need to be tackled through law, conducting empirical research. This kind of
research is not very popular among doctrinal or analytical research to find out a principle of
law. However, it is now gaining recognition in certain areas such as criminology, juvenile
offences, labour law, corporate laws etc.

In such a research, the researcher first of all accepts a working hypothesis or guess as to the
probable results and then proceeds to collect enough facts to prove or disprove his hypothesis.
He then sets up experimental designs which he thinks will manipulate the persons or the
materials concerned so as to bring forth information. In this process the researcher has to keep
control over the variables which affect the conclusion one way or the other. This kind of
research is useful when proof is sought the certain variables affect the other variables in certain
way. The Empirical method of research, although gaining significance day-by-day is not useful
for determining the goodness or badness of a thing, standard of morality prevailing in the
society. These areas can be examined only by the doctrinal mode of research. Hence it can be
said that empirical research through of much value, it is not of universal application. The
doctrinal research be ignored for empirical research.

Sources of non-doctrinal research:

Non doctrinal research is an adequate basis for ascertaining impact of law upon people (society)
and institution. For impact analysis process it requires primary data or first-hand study. Primary
data can be collected through interview, questionnaire, schedule or case law method.

21
Legal Research and Methodology, 4 JILI 487 (1972).

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i) Distinguishing feature of non-doctrinal

The following are features of non-doctrinal research:22

(a) it lays a different and lesser emphasis upon doctrine;

(b) it seeks answer broader and more numerous question;

(c) it is not anchored exclusively to appellate reports and other traditional legal resources for
its data, and

(d) it may involve the use of research perspectives, research design, conceptual frameworks,
skills, and training not peculiar to law trained personnel

ii) Demerits of empirical research

(a) It is time consuming and costly. It calls for additional training, great commitment of time
and energy, for producing meaningful result.

(b) It needs a strong base of doctrinal research. The researcher must have strong base of legal
doctrines, case law and legal institutions.

(c) It is extremely weak in solving a problem in hand, similarly it is not effective where the law
is to be developed from case to case.

(d) It cannot give a direction as to what course the law should follow to be useful.

(e) It cannot remain unaffected from human vices, upbringing and thinking because acceptance
of a new system of law in India depends on many factors, such as awareness, value, capability
and pattern of adaption.

iii) Merits

(a) It is not that the empirical kind of research is always bad for legal purpose. The factual
study, the examination of actual functioning of law in society is extremely useful for
ascertaining the acceptance of a new law or ascertaining the course of law reform. It gives us
an insight for understanding as to what kind of law the present-day society needs. Empirical
research has given rise to the sociological school of jurisprudence.

22
Earnest M. Tones: Some current trends in Legal Research, 15 Journal of Legal Education, 121-138 (1962-63).

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iv) Significance of empirical research

The empirical form of research is being undertaken more and more in the area of social science
research. However, its principles and procedures can also be applied in the area of legal
research. At present it has been accepted, without any doubt, that law is the most important
tool of social change and this change can be brought about more effectively if the social science
materials are used here as well, but it should be used with caution. Before using the technique
of social science, the following facts should be kept in mind:

(a) law students should be trained to undertake effective legal research work;

(b) he should be competent enough to go through requisite legal materials in a systematic

manner; and

(c) he should be competent to establish the relationship between the law and the society as law
has its roots in society.

If these precautions are taken care of, the social science technique will enable a legal scholar
to comprehend the complex judicial process and to take corrective action to bring about
coherence in and certainly in law.23 The empirical method of research is to supplement the
doctrinal method of research and not to substitute it.

Factors Affecting Non-Doctrinal Research

Non-doctrinal research is carried on with the help of date interviews, questionnaire and other
materials having impact in society, whether directly or indirectly and therefore, this type of
research is affected by many factors:

(1) Other disciplines, affecting society directly or indirectly have not shown interest in the
study of legal order;

(2) Legal persons are engaged mostly in the dispensation of justice, legal profession or
teaching;

23
D.N. Saraf, Relevance and Utility of Empirical Research in Law, JILI, 1982, Vol 24 Nos. 2, 3 and 4, P. 633-
34.

13
(3) Legal persons see not much scope in non-doctrinal research;

(4) So far as research by law teachers are concerned, they desist from non-doctrinal research
as it involves a great deal of financial expenditure which they cannot afford; and

(5) Legal researchers are not adequately trained in the techniques of non-doctrinal research.

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 DISTINCTION BETWEEN DOCTRINAL AND NON-DOCTRINAL
RESEARCH

Distinction between doctrinal and non-doctrinal research is invisible, as much legal research
falls somewhere between these two categories.

Doctrinal research is a typical kind of legal research in which doctrines dominate the research.
Legal doctrines may be a part of non-doctrinal research but merely as one variable. It is difficult
to draw a clear line between the doctrinal or non-doctrinal research. According to Ernest M.
Jones, “we ‘think of research into legal principles standing alone’, and research into facts,
connected with such principles as usually mixed with the principles themselves. While the
expression ‘research into legal principles standing alone’ is another way of referring to what I
have termed doctrinal research, the observation in the text concerning doctrinal research, still
appears applicable. But the expression ‘research into facts, connected with such principles, as
usually mixed with the principles themselves doesn’t catch the meaning. I intended with the
expression non-doctrinal research, that non-doctrinal research is not necessarily concerned
with legal principles; but if in a given study it is, legal principles become one of variable several
facts.”

Main distinction between doctrinal and non-doctrinal research are as follows:

1. Doctrinal research lays much emphasis upon legal principles but non-doctrinal research lays
lesser emphasis upon doctrines.

2. In Doctrinal research, researcher uses traditional source for data but non-doctrinal research
is not solely dependent on traditional or conventional sources for data.

3. Any law trained person can do doctrinal research, on the other hand non doctrinal research
involves the particular skills, conceptual frame work and knowledge of other disciplines.

4. In doctrinal research scholar seeks to answer one or two legal propositions or questions, on
the other hand non-doctrinal research involves number of question and large area.

5. Doctrinal research is a theoretical study but non-doctrinal research involves empirical study.

6. Doctrinal research id concerned with legal propositions, on the other hand non-doctrinal
research is more concerned with social values and people.

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7. Mostly secondary source of data are used in doctrinal research and primary data are used in
non-doctrinal research.

8. Doctrinal research does not require any training to collect first hand data, whereas special
practical training is needed in non-doctrinal research to teach new techniques of data collection.

9. The scope of doctrinal research is narrower than non-doctrinal research.

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 CONCLUSION

In conclusion, we can say that it is easy to target a specific methodology and identify its
strengths and weaknesses. However, it must be noted that doctrinal and non-doctrinal legal
research are the ultimate way to find the answers that have been raised in the context of attempts
to understand the emerging issues in the framework of the law. There is no hierarchy between
methodologies and they are all of equal importance for the development and understanding of
the law. What is crucial is that researchers must try and equip themselves with the necessary
skills to enable them to comfortably meet their research objectives. Undoubtedly, a well-versed
scholar will be aware of the advantages and disadvantages of any particular methodology, and
will work to obtain the benefits that result from a better quality of work. Often, the combination
of methodologies, i.e., a mixed method using ideological, social, and legal, can work together
to achieve a better understanding of the law.

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 BIBLIOGRAPHY

Book used:

1.Purohit, Dr. Mona. Legal Education & Research Methodology. First edition: Published by
Central Law Publications 107, Darbhanga Castle, Allahabad.
2.Padma, Dr. T. & K P C RAO. Legal Research Methodology. published by: Asia Law House,
Hyderabad.

Article used:

Ali, Salim Ibrahim & Dr. Zuryati Mohamed Yusoff. “Legal Research of Doctrinal and Non-
doctrinal”. University Ultra Malaysia.

Web source used:

1. Chilot.wordpress.com/ Legal Research Methods

2. https://paralegalessentials.wordpress.com

3. https://lawshelf.com/courseware/entry/legal-research-sources.

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