DR.AMBEDKAR GOVERNMENT LAW COLLEGE, CHENNAI.

RESEARCH PAPER SUBMITTED IN THE SUBJECT OF

LEGAL EDUCATION AND RESEARCH METHODOLOGY

SUBMITTED TO:

DR. , ML., Ph.D.,

ASSISTANT PROFESSOR,

DR.AMBEDKAR GOVT.LAW COLLEGE,CHENNAI.

SUBMITTED BY:

K. SATHISH

LLM., FIRST YEAR

CRIMINAL LAW
 RESEARCH PAPER SUBMITTED ON THE TOPIC OF
DOCTRINAL AND NON DOCTRINAL RESEARCH

CONTENTS
INTRODUCTION
 OBJECTIVE -----
 RESEARCH AND METHODOLOGY -----
 HYPOTHESIS -----
 LIMITATIONS -----
 REVIEW OF LITERATURE -----

CHAPTER I
 MEANING AND DEFINITION -----

CHAPTER II
 HISTORY -----
CHAPTER III
 DOCTRINAL RESEARCH -----
CHAPTER IV
 NORMATIVE CHARACTER -----
CHAPTER V
 NON-DOCTRINAL RESEARCH -----
CHAPTER VI
 MERITS OF DOCTRINAL AND NON-DOCTRINAL RESEARCH -----
CHAPTER VII
 DIFFERENCES
SUGGESTION AND RECOMMENDATION -----

CONCLUSION -----
SOURCES -----
 INTRODUCTION

“THE THOUGHTS WHEN SUBSTANTIATED BY LEGAL

KNOWLEDGE IS DOCTRINAL RESEARCH AND BY LEGAL BRAIN
IS A NON-DOCTRINAL RESEARCH”

“Doctrinal research draws the intent with which the subject

is formed and non-doctrinal research is to fill up the omission
and not neglected words or meanings”

The doctrinal and Non-doctrinal research aims at the same

objective but differ in their approach. The Doctrinal research
enables the trust and faith on the doctrines and text that have been
left by the experience and knowledge of the legislative thinkers. The
Non-doctrinal Research comprises the minds of people i.e., society
and the necessity to adopt the law to the prevailing situation.

Applying non-doctrinal research to meet the needs of the

society in a particular subject is in no way an impediment.

The non-doctrinal research leads to judicial activism and

judges are termed as researcher and the doctrinal research
leads to judicial restraint where judges are termed as
encroachers.
RESEARCH METHODOLOGY:

This research paper is based on the doctrinal research methodology

and Non-doctrinal research. The sources obtained from the legal
positions, doctrines and important cases of appellate courts coupled
with opinion and history in order to deal with research topic.

HYPOTHESIS:

The purpose, objective and need of doctrinal and non-doctrinal

research and its necessity been emphasised. The difference
between the doctrinal and non-doctrinal research has been
formulated. The severity of impact and difference of both kinds of
research.

LIMITATION:

This research paper dealt within the sphere set forth for the
interpretation of law on the basis of doctrinal and non-doctrinal
research.

REVIEW OF LITERATURE

BOOKS:

The Research and Methodology – S.R. Myneni

The Research and Methodology -

 CHAPTER I

MEANING AND DEFINITIONS:

According to S.N. Jain Doctrinal Research involves analysis of case

law, arranging, ordering and systemising legal propositions and
study of legal institutions through legal reasoning or rational
deduction.

RESEARCH:

One of the reasons for conducting legal research is to analyse

the law by reducing, breaking and separating the law into
separate elements. It can be as simple as examining and
explaining new statutes and statutory schemes or as complex as
explaining, interpreting and criticising specific cases or statutes.1

NEED FOR RESEARCH:

To solve the legal problem with a new output within a short period
of time with less expenses by closely examining and analyzing the
legal doctrine, legal framework and case laws in a logical,
systematic and scientific way .

NON-DOCTRINAL RESEARCH:

In such a research, the researcher must first provide himself with a

working hypothesis or guess as to the probable results. ... In a non-
doctrinal legal research, the researcher tries to investigate through

1
1163 OF EUSA RESEARCH
empirical data how law and legal institutions affect or mould
human attitudes and what impact on society they create.

CHAPTER III

HISTORY OF DOCTRINAL RESEARCH AND NON-DOCTRINAL

RESEARCH

The term ‘Doctrinal Research’ emerged from Latin Doctrina which

means to instruct, a lesson, a precept.

• Doctrine refers to legal concepts and principles of all types

that includes in its ambit cases, statutes, rules etc. the
Doctrinal research had dominant influence in 19 th and 20th
century view of law and legal scholarship. Therefore tends to
dominate research design.

• Conducting empirical research in law has originated recently.

“The empirical research technique is also called as “fact
research”.

• Empiric means ‘relying solely on observation and experiment,

not theory’. The empirical research is carried out by collecting
and gathering data or information by a first hand study into
the universe.
 CHAPTER III

DOCTRINAL RESEARCH:

Doctrinal Research can also be termed as Traditional or Non-emperical

Legal research or Pure research.

“A doctrinal research means a research that has been carried out on a legal
proposition or propositions by way of analysing the existing statutory
provisions and cases by applying the reasoning power.”

Doctrinal research asks what the law is on a particular issue. It is

concerned with analysis of the legal doctrine and how it has been
developed and applied. This type of research is also known as pure.
Doctrinal Research — ‘Research which provides a systematic exposition of
the rules governing a particular legal category, analyses the relationship
between rules, explains areas of difficulty and, perhaps, predicts future
developments.’

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
formulations of the law in particular contexts. They clarify
ambiguities within rules, place them in a logical and coherent
structure and describe their relationship to other rules. The
methods of doctrinal research are characterised by the study of
legal texts and, for this reason, it is often described colloquially as
‘black-letter law’.
Why it is called as Traditional Research:

Ascertaining a legal rule for the purpose of solving a problem is one

of the purposes of the traditional legal research. This has been
achieved by the original sources of law.

The Acts of the parliament and the Acts passed by the legislature
fall under this category of legislation. The case laws decided by the
Supreme Court and High Courts which are binding on lower courts
fall under the category of preceedents.

REQUISITES:

The Doctrinal Research looks at the following issues –

1. The aim of preferred value,

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

3. Availability of alternative choice for the implementation of goals.

4. The predictions and consequences that were made.

 CHAPTER IV

Normative character of doctrinal research

Doctrinal research is concerned with the discovery and development

of legal doctrines for publication in textbooks or journal articles and
its research questions take the form of asking ‘what is the law in
particular context?

This is perhaps most obvious in a comparison with research in the

natural sciences which typically seeks to explain natural
phenomena through studying the causal relationships between
variables. Epistemologically, this is clearly very different from the
interpretive, qualitative analysis required by doctrinal research.
Although the interpretive nature of the process bears a superficial
resemblance to the western tradition of the social sciences
(Schwandt, 2000), there are actually fundamental epistemological
differences between doctrinal analysis and all styles of scientific
research.

Scientific research, in both the natural and social sciences, relies on

the collection of empirical data, either as a basis for its theories, or
as a means of testing them. In either case, therefore, the validity of
the research findings is determined by a process of empirical
investigation. In contrast, the validity of doctrinal research findings
is unaffected by the empirical world. 2
2
The Reporter: Newsletter of the Society of Legal Scholars,

25, 5–12.
Legal rules are normative in character as they dictate how
individuals ought to behave (Kelsen, 1967). They make no attempt
either to explain, predict, or even to understand human behaviour.
Their sole function is to prescribe it.

In short, doctrinal research is not therefore research about law at

all. In asking ‘what is the law?’ it takes an internal, participant-
orientated epistemological approach to its object of study (Hart,
1961) and, for this reason, is sometimes described as research in
law (Arthurs, 1983).3

The normative character of the law also means that the validity of
doctrinal research must inevitably rest upon developing a
consensus within the scholastic community, rather than on an
appeal to any external reality.

In practice, even doctrinal analysis usually makes at least some

reference to other, external factors as well as seeking answers
that are consistent with the existing body of rules.

3
Arthurs, H.W. (1983)

Law and Learning: Report to the Social Sciences and Humanities Research
Council of Canada by the Consultative Group on Research and Education in Law
, Information
Division, Social Sciences and Humanities Research Council of Canada, Ottawa
  For example, an uncertain or ambiguous legal ruling can often
be more easily interpreted when viewed in its proper historical
or social context, or when the interpreter has an adequate
understanding of the industry or technology to which it
relates.

CHAPTER V

EMPIRICAL OR NON-DOCTRINAL LEGAL RESEARCH:

Empirical research is an enquiry that attempts to discover and

verify general rules allowing us to understanding why human
beings behave the way they do. The methods like observation,
interview, questionnaire, survey and case study are used to discover
the human conduct. All inquiries are not suitable to empirical
methods. Any inquiry whose objective is to determine what is good
and what is evil cannot be empirically tested. The
reason or this is that the researcher cannot discover the admissible
physical evidence.

Research into the value system and moral questions are also not
amenable to empirical methods.

The empirical research is mainly concerned with the legal decision

process, i.e., researcher’s attention is on variables that influence
the decision and the impact of the decisions on the society. The
empirical research may be defined as research into
relationship of law with other behavioural sciences. Here, more
importance is given to people, social values and social institutions
which are related to the legal aspects.

REQUISITES:

1. It tries to find out the impact of non-legal events upon the legal
decision.

2. It seeks to identify and appraise the degree of variables influence

the outcome.

3. It tries to find out the effect of each decision on people and

society as such legal decision making.

The field of empirical research is wider and the availability of

authoritative sources is very less which involve several new
techniques which are unknown to the research.

CHAPTER VI
MERITS OF DOCTRINAL RESEARCH:

There are several advantages associated with doctrinal or library

based research methodology.

Firstly, it is the traditional method for conducting legal search

and is often taught during early stages of legal training.

Secondly, it basically involves analysis of legal principles,

concepts or doctrines, their logical ordering and systematizing of
legal propositions emerging there from, has some practical utility.

Thirdly, 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.

Fourthly, for all practical purposes, and for resolving day-to-

day client matters, doctrinal research is the expected and required
methodology. Furthermore, because of its focus on established
sources, doctrinal research is more manageable and its outcomes
are more predictable.

Fifthly, a scholar of law indulged in doctrinal legal research, in

a systematic way and with convincing reasoning, exhibits inbuilt
loopholes and gaps or ambiguities in the substantive law and
thereby invites the legislature to plug them through amendments,
so that the law can be more purposive and effective.
 In the recent past, doctrinal research has received a severe jolt
due to change in the political philosophy of law from the laissez
faire to the welfare state envisaging socio-economic transformation
through law and legal institutions, the consequential new
substantive and functional facets of law, and certain compelling
pragmatic considerations arising from this metamorphosis.

MERITS OF NON-DOCTRINAL RESEARCH:

Non-doctrinal research, also known as socio-legal research is a

legal research that employs methods taken from other disciplines to
generate empirical data to answer research questions. It can be
problem, policy or law reform based. Non-doctrinal approach allows
the researcher to perform inter disciplinary research where he
analyses law from the perspective of other sciences and employs
these sciences in the formulation of the law. It is valuable in
revealing and explaining the practices and procedures of legal,
regulatory, redress and dispute resolution systems and the impact
of legal phenomena on a range of social institutions, on business
and on citizens.

The methods like observation, interview, questionnaire, survey

and case study are used to discover the human conduct. All
inquiries are not suitable to empirical methods. Any inquiry whose
objective is to determine what is good and what is evil cannot be
empirically tested. Research into the value system and moral
questions are also not amenable to empirical methods.
 The empirical research is mainly concerned with the legal
decision process, i.e., researcher’s attention is on variables that
influence the decision and the impact of the decisions on the
society. The empirical research may be defined as research into
relationship of law with other behaviroural sciences. Here, more
importance is given to people, social values and social institutions
and not to the legal aspects or doctrines. Objectives of Empirical
Research:

In a non-doctrinal legal research, the researcher tries to

investigate through empirical data how law and legal institutions
affect or mould human attitudes and what impact on society they
create.

He endeavours to look into ‘social face or dimension’ of law

and ‘gap’, if any, between ‘legal idealism’ and ‘social reality.’ Thus,
non-doctrinal legal research involves study of social-impact of law
or of social-auditing of law. Merits of Non-Doctrinal Research:

Empirical research enhances lawyers ability to understand the

implications and effects of the law on society. Legal researchers can
use social science methodologies themselves to investigate issues,
or they can collaborate with skilled researchers from other
disciplines. It highlights the ‘gaps’ between ‘legislative goals’ and
‘social reality’ and thereby ‘depicts’ a ‘true picture’ of ‘law-in-action’.
It particularly highlights the ‘gap’ in relation to:
 (a) the practice of law enforcers, regulators and adjudicators
and

(b) the use or under-use of the law by intended beneficiaries of

the law i.e. The regulatory body, existing or created under the law,
vested with the power to monitor and enforce the law, may, due to
some prejudices or apathy towards the ‘beneficiaries’ or sympathy
towards their adversaries, be professionally ‘inactive’ in enforcing
the Law. Non-doctrinal legal research, in this context, highlights the
‘reasons’ behind making the law ‘symbolic’, less-effective or
ineffective.

It also reveals the extent to which the beneficiaries have been

able to ‘use’ the law and the ‘reasons’ or ‘factors’ that have
desisted/are desisting them from using it. Through empiricism,
non-doctrinal legal research highlights the underlying currents or
factors (like unawareness on part of the beneficiaries, unaffordable
cost in seeking the legal redress, or the fear of further victimization
if the legal redress is pursued, and the like) that have been
desisting them from seeking the benefits that the law intended to
bestow on them and to seek legal redress against those who prevent
them from doing so. It, thus, exposes the ‘bottlenecks’ in operation
of law.

The non-doctrinal research carries significance in the modern

welfare state, which envisages socio-economic transformation
through law and thereby perceives law as a means of achieving
socio-economic justice and parity. It also helps us in assessing
‘impact of law’ on the social values, outlook, and attitude towards
the ‘changes’ contemplated by law under inquiry. Difference
between Doctrinal (traditional) and non-doctrinal (empirical)
research.

MATERIALS OF DOCTRINAL RESEARCH:

 Legislation and delegated legislation

 Case laws
 Legal Dictionaries and Legal Encyclopaedias
 Textbooks , Law reform and policy papers
 Loose leaf services
 Journal articles

CHAPTER VII

DIFFERENCE BETWEEN DOCTRINAL AND NON-DOCTRINAL:

1. It is concerned with legal prepositions and doctrines.
It is concerned with people, social values and social institutions.

2. The sources of data are legal and appellate court decisions. The
sources of data are less and mostly new techniques have to be
used.

3.  It is not concerned with people, but with documents. More

importance is given to the society and people, i.e., it tries to find out
the effect of legal decisions upon the society.

4. The scope is narrower since it studies about what the doctrine or

the authority says. Scope is wider.

5. More support and encouragement is given for this type of

research. Less encouragement is given.

6. No use to give training to collect and use the sources. Training is

needed to use new techniques in the research.

7. Field work is not needed and library reference is enough. The

field work is more important part of this research.

SUGGESTIONS

DOCTRINAL:
 • Mainly Qualitative

• Distinctive

• Undertaken according to accepted discipline standards and

rules

• Requires specific language and knowledge skills by those

undertaking it

• Includes higher level critique

• Includes a lit review as contextual background

• Is centred on the reading of primary sources of doctrine

• Needs a guiding principle or pseudo-hypothesis.

NON-DOCTRINAL:

1. Financial support is lacking.

2. Other disciplines had shed away from the study of legal order
has been shed away.

3. Due to their preoccupation with their profession, the

contributions of legal.

4. Legal researchers lack a tradition that enable them to strengthen

the empirical.

5. Lack of training in the use of techniques of this empirical

research. Most of the steps by other disciplines academicians is
very less. Collection of data, field work, formation of hypothesis,
etc. are unknown to the legal researcher.

6. There is an unfavourable and arrangement attitude towards the

empirical research.

7. The use of qualitative measurement techniques are very difficult

to understand by legal researchers.

Non-Doctrinal methods to be encouraged with sufficient

sponsorship, training has to be improved, field developments has to
be made and encourage teachers to adopt non-doctrinal methods of
teaching and to render their guidance to students.

CONCLUSION

“NON-DOCTRINAL RESEARCH SHOWS THE TRUE

COLOUR AND DOCTRINAL RESEARCH SHOWS THE REAL
COLOUR”

“EVERY PRECEDENT IS A BAD PRECEDENT AND THUS

NON DOCTRINAL RESEARCH HOLDS A PERFECT MODEL FOR
FUTURE”