QUESTION

Legal scholars are doing very different things both

in terms of the methodologies they use and the
goals they seek to accomplish. Consequently,
generalizing about legal scholarship is bound to
ignore important distinctions.” Discuss
FLAW 605
Research Methodology and Proposal Writing

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Legal scholars have for a long time been researching mainly within the internal areas of doctrinal

legal studies in legal research and scholarship. However, several factors have compelled them to

shift and change to other methodologies. These new methodologies have been linked to other

disciplines and have required legal scholars to sometimes. be more scientific in their approach to

legal scholarship and research.

This discussion will explain some of these new methodologies used by legal scholar in their

research and what some of their common goals in research are. In legal research methodologies. It

will also discuss the effect of generalising legal scholarship and identify the distinctions in legal

research and methodologies.

Legal scholars have based their research mainly on doctrines of law or what is commonly referred

to as doctrinal legal analysis. This approach to research had legal scholars focus mainly on existing

theories of law and how they applied to the practice and study of law. This methodology

concentrated on law and how it relates to these doctrines and the consistencies and inconsistencies

that exist internally within the areas of law.

Legal scholars who used this methodology were more focused on internal research of law and did

not give much attention to their research of law in relation to other disciplines like the social

sciences, science and economics.

The methodology of comparative law is one approach that makes legal research cut across

jurisdictions but nor necessary disciplines. This means that legal scholars and drafters of the laws

of a nation, may make comparative analysis of the law as it is practiced in other jurisdictions and

apply relevant sections to their own local context. It does not usually compare other disciplines to

law or adopt the methodologies of research in other disciplines.

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In recent times, legal scholars have taken a broader approach to their research methodologies. The

legal research that focuses on law without attention to other disciplines has been identified

sometimes as being an internal research methodology and the external is also the methodology

that extends to other disciplines1.

By this approach, legal scholars have sought to extend legal research to other disciplines.

Mccruden identifies three key areas of interdisciplinary research under the social sciences, namely

social legal studies, critical legal studies and law and economics.2

In my opinion, the external or interdisciplinary methodology can be broadened to cover many

recently developing areas of law such as space law and Information Technology.

The reason Legal scholars use this interdisciplinary research methodology is to gain a deeper and

wider understanding of legal research and its relation to other areas of scholarship.

The social legal research approach, for example, tries to establish empirical evidence to research

findings in relation to law. This approach, in contrast to doctrinal legal research approach, relies

on empirical evidence in investigation as a way to establish facts. In other words, the social legal

research approach relies on the empirical nature of the social sciences to establish facts in legal

scholarship and research.

Another external approach is the law and economics. This is classified under the behavioral

sciences by the emphasis legal scholars.3

1
(Mccrudden, 2006)
2
(Mccrudden, 2006)
3
(Mccrudden, 2006)
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One major example of the external approach is the post empiricist scholarship1. This approach

relies on empirical data from the social sciences to establish and make arguments in legal research

scholarship and writing. There has been an increase in the use of this approach or methodology.2

The reason for the increase in empirical approach is that legal scholars now seek to make their

research and writing more relevant by incorporating with other disciplines.

The shift from the doctrinal and theoretical approach has also been financially motivated.3

Academic legal scholars have had to shift their methodology to incorporate other disciplines to

enable them benefit from the enormous funding opportunities available to the empiricist legal

research methodologist, or researchers in the social sciences. In UK and Australia, governments

have allocated more funding to social science research so legal scholars who incorporate social

science disciplines into their research also benefit from such funding.4

Another key reason for the shifts in methodology is that legal scholars and practitioners in the

early centuries of legal practice and scholarship, had only been trained in the apprenticeship of law

and did not have relevant academic education in other disciplines;5 therefore it was not an easy

task for them to comprehensively incorporate other disciplines into their study and research.

As new scholars from other disciplines entered legal scholarship and researched, they brought with

them new skills that hitherto, were not common in legal scholarship. These new skills helped them

combine more knowledge from different disciplines to in their scholarly works.

1
Ibid
2
(Posner, 1987)
3
(Hutchinson & Duncan)
4
Ibid
5
(Posner, 1987)
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The advancement in modern areas of such as Information Technology, Space exploration, posed

greater authority and prestige over the autonomous legal research.1 Researchers who combined

these disciplines with law were seen to be more in-depth with their findings. These new areas also

attracted younger scholars, who saw the theoretical and doctrinal legal research methodology as

archaic.2

The various methodologies and approaches to legal research have distinctions which are relevant

in their own ways. I believe that legal scholars have used different research methodologies based

on what they sought to achieve, the demand from the period of time of their research and their own

exposure to other disciplines (academic and professional disciplines).

Whereas the theoretical and doctrinal legal research methodological scholars perceived law as an

autonomous discipline which did not require any reliance on other disciplines, the empiricist

approach deemed it fit to incorporate legal scholarly research to other disciplines to give such legal

research versatility in acceptance.

In conclusion, I will say that legal scholars should be commended for their bold steps in taking

different approaches to legal research. I believe that these several new approaches will improve

the quality of legal research and legal scholarship in general. It will also give the practice and study

of law a far-reaching effect to cover key new areas of other disciplines and properly annex them

under legal scholarship and research. This ‘annexation’ will help in formulation of law in these

other disciplines.

1
Ibid
2
Ibid
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References
Baude, W., Chilton, A. S., & Malani, A. (2017). Making Doctrinal Work More Rigorous: Lessons from
Systematic Reviews. Univerisity of Chicago Law School, 37 - 58.

Eberle, E. J. (2011). The Methodology of Comparative Law. Roger William University Law Review.

Heise, M. (2002). The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making
and the New Empiricism. Cornell Law Faculty Publications.

Hutchinson, T., & Duncan, N. (n.d.). Defining and Describing What We Do: Doctrinal Legal Research.
Deakin Law Review, 84 - 119.

Mccrudden, C. (2006, July). Legal Research and the Social Sciences. The Law Quarterly Review.

Posner, R. A. (1987). The Decline of Law as an Autonomous Discipline: 1962-1987. University of Chicago
Law School Chicago Unbound.

Smith, S. A. (2000). Taking Law Seriously. University of Toronto Law Journal, 241-259.