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Idea and Methods of
Legal Research
Idea and Methods of
Legal Research

P. Ishwara Bhat

1
 1
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 Tables and Figures

Tables
13.1 Offences against the Human Body under IPC during
2014–16: A Tabular Representation of Comparable Data 418
13.2 Frequencies of Job Offers Made by Employers
in Campus Selection at a Law School: Illustrating
Polygon and Histogram 420
13.3 Inmate Absorption in District and Central Jails:
Finding Percentage 425
13.4 Number of Superstition-Based Homicides in India:
Computation of Arithmetic Mean of Ungrouped Data 427
13.5 Computation of Arithmetic Mean of Monthly Income of
Lawyers Giving Legal Aid Service by Using Discrete Data:
Example of Lawyers’ Income 428
13.6 Computation of Arithmetic Mean Using Continuous
Grouped Data: Examples of Job Offers 429
13.7 Computation of Median Using Continuous Grouped Data:
Example of Size of Debts of Farmers at Suicide 431
13.8 Computation of Mode Using Continuous Grouped Data:
Example of Cases Disposed by Subordinate Courts of a
District Court 433
13.9 Computation of Standard Deviation Using Continuous
Grouped Data: Example of Holding of Lands by Farmers 436
viii Tables and Figures

13.10 Data on Number of PCAs in Different Places and the

Number of Crimes Reported: Example for Scatter Plot 440
13.11 Relationship between the Numbers of Superstition-Based
Crimes (2008–16 as per NCRB) and the Level of Economic
Development as Reflected in HDI: Example for Karl
Pearson Formula 443
13.12 Computation of Spearman’s Rank Correlation Coefficient
(When There is No Tie): Example of Children Requiring
Legal Protection 445
13.13 Prototype of 2 X 2 Table: For Yule’s Coefficient of Correlation 446
13.14 Computation of Yule’s Coefficient: Example of People’s
Attitudes to Child Marriage 446
13.15 Computation of Phi Coefficient of Offenders under
Protection of Children against Sexual Offences Act, 2012 447
13.16 Preference of Type of Legal Framework by Religious
and Non-religious NPOs in a District: Example for
Chi Square Test 451
13.17 Preference of Type of Legal Framework by Religious
and Non-religious NPOs in a District after Computing
Expected Number: Example for Chi Square Test 452
13.18 Calculation of Observed and Expected Frequencies and
the Extent of Difference: Example for Chi Square Test 453

Figures
13.1 Frequency Polygon Representing Data in Table 13.2 420
13.2 Histogram Representing Data in Table 13.2 421
13.3 Line Graph Reflecting Trend of Superstition-Based
Homicides in India as Captured in Table 13.4 422
13.4 Multiple Bar Diagram Presenting a Comparative Study
of Crime Categories Captured in Table 13.1 422
13.5 Pie Diagram Showing the Educational Background
of Inmates of Prison at Nahan 424
13.6 Scatter Plot Related to Table 13.10 440
13.7 Scatter Plot with Various Types of Correlation 441
 Cases

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A.K. Gopalan v State of Madras AIR 1950 SC 27
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Armugam Servai v State of Tamil Nadu AIR 2011 SC 1859; (2011) 6 SCC
405
Aruna Ramchandra Shanbaug v Union of India AIR 2011 SC 1290
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Bandhua Mukti Morcha v Union of India (1997) 10 SCC 549
x Cases

Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; (1984) 3

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 Cases xi

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Foster v Florida 537 US 990 (2002)
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Gian Kaur v State of Punjab JT 1996 3 SC 339
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AIR 1979 SC 1369; AIR 1979 SC 1360; AIR 1979 SC 1377
I.C. Golaknath v State of Punjab AIR 1967 SC 1647
I.R. Coelho v State of Tamil Nadu AIR 2007 SC 861; (2007) 2 SCC 1
Imlesh v Amit AIR 2014 P&H 89
Imtiyaz Ahmad v State of U.P. and Ors AIR 2012 SC 642
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Business and Financial News dated 23 January 2014 AIR 2014 SC 2816
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Joseph Shine v Union of India (2018) 2 SCC 189
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Kajal Das v Juli Mahajan Das AIR M2013 Gau 133
Kalpana Mazumdar v State of Orissa (2002) 6 SCC 536
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Karimbil Kunhikoman v State of Kerala AIR 1962 SC 723
xii Cases

Karnataka Board of Waqf v Government of India 2004 (10) SCC 779

Kerala Samsthana Chethu Tozhilali Union v State of Kerala (2006) 4 SCC
327; AIR 2006 SC 3480
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SC 792
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Mamata Bharadwaj v Madhusudan Bharadwaj AIR 2015 MP 103
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Marbury v Madison (1803) 1 Cranch 137 (US)
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Minerva Mills v Union of India AIR 1980 SC 1789
Miranda v Arizona 384 U.S. 436 (1966)
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Mohammed v Shah Bano Begum (1985) 2 SCC 556, AIR 1985 SC 945;
Mohd Ahmed Khan v Shah Bano Begum 1985 SCR (3) 844)
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 Cases xiii

Murlidhar Agarwal v State of U.P. AIR 1974 SC 1924

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xiv Cases

S. Mahendran v Secretary, T.D. Board AIR 1993 Ker 42

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 Cases xv

Supreme Court Advocates-on-Record Association v Union of India AIR 2016

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No 4 (1988)
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Waman Rao v Union of India (1981) 2 SCC 362
Washington v Gluckenburg (1997)
Mr X v Union of India AIR 2016 SC 3525
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Zahira Habibulla H. Sheikh v State of Gujarat (2004) 4 SCC 158; AIR
2004 SC 3114
 Abbreviations

ADR alternative dispute resolution

ALR analytical legal research
ARL action research in law
CBA cost–benefit analysis
CEHAT Centre for Enquiry into Health and Allied Themes
CI co-operative inquiry
CJI Chief Justice of India
CLR comparative legal research
COPAI collection, organization, presentation, analysis, and
interpretation
CR coefficient of range
CrPC Code of Criminal Procedure, 1973
CSM case study method
CWC child welfare committee
DLR doctrinal legal research
DS disputed structure
EGSSRH Ethical Guidelines for Social Science Research in Health
ELR empirical legal research
FDI foreign direct investment
FGD focused group discussion
GATS general agreement in trade and services
GDP gross domestic product
GST goods and services tax
HDI human development index
xviii Abbreviations

HLR historical legal research

HRC human rights council
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICMR Indian Council of Medical Research
ICSSR Indian Council for Social Science Research
ICT international criminal tribunal
ILI Indian Law Institute
IPC Indian Penal Code
IPR intellectual property rights
JJA Juvenile Justice Act
JJB Juvenile Justice Board
LEC legal education centre
LR literature review
LST law and social transformation
MD mean deviation
MGNREGA Mahatma Gandhi National Rural Employment
Guarantee Act
MHA Ministry of Home Affairs
MHRD Ministry of Human Resources Development
MLA Modern Language Association
MMLR multi-method legal research
MoEF Ministry of Environment and Forest
MoF Ministry of Finance
MoPR Ministry of Panchayat Raj
MRTP Monopolies and Restrictive Trade Practices Act
NCESSRH National Committee for Ethics in Social Sciences
Research in Health
NCMS National Court Management System
NCRB National Crime Records Bureau
NDLR non-doctrinal legal research
NGO non-government organization
NHRC National Human Rights Commission
NJAC National Judicial Appointment Commission
NLUD National Law University, Delhi
NPO non-profit organization
NSSO National Sample Survey Office
NUJS (West Bengal) National University of Juridical Sciences
 Abbreviations xix

OSCOLA Oxford University Standard for Citation of Legal

Authorities
PA participatory assessment
PAR participative action research
PCA person with criminal antecedents
PEST politics, economics, society, and technology
PIL public interest litigation
PRL policy research in law
RTI right to information
QLR qualitative legal research
QtLR quantitative legal research
RD research design
RP research proposal
SAARC South Asian Association for Regional Cooperation
SD standard deviation
SEZ special economic zone
SLP special leave petition
SJPU special juvenile police unit
SWOT strength, weakness, opportunity, and threat
TRIMs trade related aspects of investment measures
TRIPs trade related aspects of intellectual properties
UCC uniform civil code
UDHR Universal Declaration of Human Rights, 1948
UDRP uniform domain name dispute resolution policy
UGC University Grants Commission
UN United Nations
UNCITRAL United Nation Commission on International Trade Law
UNICEF United Nations International Children’s Emergency Fund
UNIDROIT International Institute for the Unification of Private Law
WTO World Trade Organization
 Foreword

Professor Ishwara Bhat has done a splendid service to legal research and
writing with this substantial work, which covers both the idea and methods
of critical juristic research. The book in your hands is the result of inde-
fatigable efforts and missionary dedication of Professor Bhat and richly
repays several readings; modestly titled as a book on research methods,
it is in fact a veritable handbook of social science–oriented legal studies
and research.
Research is involved in all dimensions of law in modern society—
academia, adjudication, lawmaking, policymaking, law reform, and
implementation/enforcement process. There is no domain of law and
legal studies which may altogether dispense with the idea and methods of
research. But not all research is critical or reflexive. Professor Bhat urges
that it is high time to move beyond the broad divisions of ‘doctrinal’
and ‘empirical’ research—a distinction with which the debate on legal
research momentously began in India in the 1970s. This does not mean
that the broad divisions are not necessary, but only that they are not
sufficient and in constant need of realignment.
The idea and methods of legal research are distinct but interrelated.
What is present as ‘the golden thread running throughout the work’ is the
‘interface between the two’.1 The engagement with idea ‘unearths the way
in which thinking process is to be streamlined in research, the manner

1
Quoted material in this section of the foreword has been taken from the
preface of the present volume.
xxii Foreword

in which a theme is to be built and the paths through which notions of

objectivity, welfare, feminism, ethics, and purposive character of knowl-
edge are to be internalized in legal research’. Central to any research task
or enterprise are ‘discursive intellectual actions’ —both the strategy and
operations. And salient in research are the ‘development of concepts’ and
critical examination in ‘coherent writing’. Professor Bhat rightly insists
that theory and method ‘mutually shape each other’; he says at the out-
set that the ‘idea developed through meticulous intellectual exercise and
empathizing approach is backbone of critical legal writing’. It is a princi-
pal achievement of this work that it is both a treatise on research methods
and on jurisprudence and legal theory.
The present work deals with the idea as well as the methods of legal
research. It emphasizes on systematization of thinking process in order
to build a sustainable theme. Reflexive research begins only with the
differentiation between having an opinion and exercising a judgement:
critical or reflexive research paves the path for the latter.
Central to research remain the tasks of conceptual research—both
legal concepts and juristic conceptions, or concepts about changes in
law and concepts of change of law. If the unceasing tasks of interpreta-
tion give rise to changes in, and at times, of the law and Constitution,
the tasks of research consist in ‘making them strong through supporting
data and arguments’. Further, Professor Bhat insists on ‘coherent … writ-
ing’. These ‘discursive intellectual actions central to research’ should not
eclipse the fact that ‘theory and methods mutually shape each other’.
One of the main strengths of this work lies in the reiteration of the
truth of the integral relationship between law and society: ‘Basically, every
law is an embodiment of a social approach, a statement of choice to do
or abstain in relation to individual or collective human behaviour and
an invitation to action.’2 Accordingly, whether deployed as a means of
social control or as an instrumentality for social change, what is required
is ‘multi-method legal research’ (MMLR)—a meta-method ‘that makes
use of more than one research method, techniques or strategies to study
one or more closely related legal issues’ or a ‘sequential or simultaneous
application of multi-method research’.
Multi-method legal research entails ‘holistic perspectives’,3 which
involves ‘brainstorming by using law economics analysis, law–society

2
This quote has been taken from Chapter 15 of the present volume.
3
The quotes in this section have been taken from Chapter 14 of the present
volume.
 Foreword xxiii

interaction, legal historiography, teleology, and other specific

approaches’. This might be a tall order but it is a maxim on which all
science and social science seems based. Professor Bhat wants us even to
conclude that ‘MMLR is a necessity rather than luxury in legal research’
because ‘what can’t be done by mono-method approach can be done
by multi-method research, and be done with greater efficiency and
synergy, and towards more comprehensive output.’ I find precious the
MMLR approach (or ‘intersectionality’, as feminist and impoverish-
ment researchers term it) and its protocols of research. Best critical legal
research has always proceeded by a combination of research methods
and the learned author remains sensitive to its promise, while alerting
us to some perils, as chapters on policy, action, and feminist research
make clear.
The incredible sweep of this work is thus manifest all through, but it
stands particularly highlighted by the chapter on feminist legal research
methods. Thinking like a woman does not come naturally to biologically
male and culturally male/female. Avoidance of sexism in doing
research is essential to doing good legal research. It remains necessary to
find ways of overcoming both what Wendy Brown named ‘the male in
the state’4 (I would also add the male in civil society) and what is currently
called (by Janet Hailey and Prabha Kotiswaran) ‘governance feminism’.5
More ‘public secrets’ (as Pratiksha Baxi calls them) of the patriarchal state
and society (and their laws) need to be brought to the light of day by
difficult action research on entranced forms of violent social exclusion.6
There is also need to attend to other groups subjected to violent sexual
subjugation such as modern slavery, children and juveniles in total
institutions, and the situation of same-sex and transgender folks. How law
creates discrimination and sustains social prejudice furnishes important
sites and fields of effective legal research.
Georg Wilhelm Friedrich Hegel (in Elements of the Philosophy of Right,
1820) famously said that ‘[e]ducation in its early stages always begins
with fault-finding, but when it is complete, it sees the positive element

4
Wendy Brown, ‘Finding the Man in the State’, (1992) 18(1), Feminist
Studies, 7–34.
5
Janet Halley, Prabha Kotiswaran, Rachel Rebouche, and Nila Shamir,
Governance Feminism: An Introduction (University of Minnesota, 2018).
6
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxofrd University
Press, 2013).
xxiv Foreword

in everything’.7 A good scholar, who is always a learner, combines both

these attributes. Ishwara Bhat, in this indispensable work, brings home
both the difficult art of finding ‘positive element in everything’ with the
science of ‘fault-finding’—ethical virtues that critical and reflexive legal
research is all about.

Upendra Baxi
Emeritus Professor of Law
University of Warwick and Delhi

7
Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right (ed.
Allen Wood, trans. H.B. Nisbet, Cambridge University Press, [1991], 2003),
269. The popular quote of G.W.F. Hegel states that the ‘learner always begins by
finding fault, but the scholar sees the positive merit in everything’ (emphasis mine).
 Preface

In building and using the knowledge system of any discipline, research

plays a great role. It is a systematic way of finding the truth, explaining
the phenomenon, conceptualizing the theories, and suggesting appro-
priate future course of action. It is a mindset for scientific understand-
ing. Law being both a normative rule and social reasoning, any inquiry
into its basis, meaning, social setting, and outcome needs a systematic
approach. Depending upon the nature of the topic and circumstances,
the researcher may employ tools of doctrinal legal research or empirical
(non-doctrinal) legal research. What method/s should be employed for a
particular research and why, and how to combine them for ensuring qual-
ity product are the concerns of research methodology. The present work
engages on these matters in the sphere of law.
Application of legal research by students, researchers, legal academi-
cians, law-reform institutions, lawyers, judges, lawmakers, administrators,
writers, and civil society has been a matter of daily professional routine
in modern days. Attaining comprehensive skills of legal research in its
varieties adds to excellence in their tasks. It will be a guiding companion
in the journey of knowledge and professional service. The methodology
of research-based critical legal writing is a field in which the researcher
should get mastery.
The present work deals with both the idea and methods of legal
research. The interface between the two and the functioning of each
constitute the golden thread running throughout the work. Its focus on
idea unearths the way in which the thinking process is to be streamlined
xxvi Preface

in research, a theme is to be built, and the paths through which notions

of objectivity, welfare, feminism, ethics, and purposive character of
knowledge are to be internalized in legal research. Evolving concepts,
making them strong through supporting data and arguments, critically
examining them, and expressing them coherently in writing are the
discursive intellectual actions central to research. Theory and methods
mutually shape each other. Ideas developed through meticulous intel-
lectual exercise and empathizing approach is the backbone of critical
legal writing.
In the systematic display of various methods of legal research,
the book includes within its fold some areas neglected in the existing
literature on legal research methods, although they are very prominent
methods employed daily in legal research. It focuses on historical, ana-
lytical, comparative, philosophic, qualitative, quantitative, feminist,
policy, action, and multi-method research. Doctrinal, non-doctrinal, and
integrated methods of research, along with their diverse subcategories,
have filled the ever-expanding toolkit of the legal researcher. Choice of
an appropriate method suitable to the tackling of the problem at hand,
a challenging concern of methodology, holds the key to the success of
intellectual discourse called research. Along with giving details of diverse
methods, the book discusses general issues such as asking research questions,
formulating hypotheses, collecting and analysing data, drawing conclusions,
and making expositions both in doctrinal and non-doctrinal domains of
legal research. The twin interacting themes engaged in the book justify
the title ‘Idea and Methods’.
Giving examples from Indian legal literature and contemporary dis-
course and integrating western ideas and approaches to legal research, the
book tries to make the whole understanding of legal research familiar and
interesting to Indian readers and legal researchers. It elaborately explains
the thinking process connected with legal research and developing the
research theme. Shedding light on the tools of data collection in doctrinal
and non-doctrinal legal research, it has laid the lens on qualitative and
quantitative legal research. Simple examples from accomplished research
works or current debates aim at making the work lucid for the novice in
research.
The present work has five parts. The first part deals with general mat-
ters such as the meaning, evolution, and scope of legal research; system-
atization of thinking process; objectivity and ethics in legal research; and
building a theme through an appropriate research plan. The second part
engages in discussing various ways through which doctrinal legal research
 Preface xxvii

can be conducted. This includes doctrinal, analytical, historical, compar-

ative, and philosophical methods of conducting legal research. The third
part unravels the discussion on non-doctrinal legal research by highlight-
ing empirical, qualitative, and quantitative methods of legal research. It
also catalogues the tools employed for non-doctrinal legal research and
explains the method of using them. The fourth part takes to the fields
where a combination of doctrinal and non-doctrinal legal research can be
attempted. Multi-method legal research, policy research, action research,
and feminist legal research occupy this field. A point emphasized in vari-
ous chapters is that legal research cannot afford to have compartmental-
ization of methods and that the researcher has to be eclectic and interdis-
ciplinary in his approach. The final part reflects over the steps involved
in research-based critical legal writing, as distinct from client-related or
norm-creating legal writing. The book also contains an appendix with
various forms of citations according to which books, articles, journals,
and primary materials are to be cited. Examples of citation styles include
the Harvard Blue Book, Modern Language Association, OSCOLA,
preceded by Indian Law Institute Rules of Footnoting.
The book hopes to help researchers in drawing a roadmap for their
intellectual sojourn by focusing on how to build a theme around research
questions on the basis of comprehensive and intensive study; the require-
ments, advantages, and limits of various methods, and how to select
a method or combination of methods suitable to a particular research
problem; and how to deal with the dichotomies between objectivity and
sympathy and between truth and justice. The interdisciplinary character
of legal research and application of technology in the domain of research
have opened up vast possibilities of conducting research on socio-legal
issues and have added to its strength. The give and take of legal research
with other social sciences is a point of its great strength.
The present work is an outcome of my teaching legal research
methodology to post-graduate law students for more than a decade and
teaching PhD students in the context of their coursework in various
institutions. I had to study books on statistics, listen to lectures of
experts in quantitative research, and interact with them for preparing
my lectures on quantitative legal research. Selection of suitable examples
from the National Crime Records Bureau (NCRB) or court judgments
or news items was a challenging task. The experience of applying the
idea and methods of research in my personal or institutional research also
helped in bringing out this book. I am grateful to various institutions
for such opportunities.
xxviii Preface

When I approached Professor Upendra Baxi, an eminent jurist and

legal researcher par excellence, for a foreword to the book he kindly agreed
and wrote an encouraging foreword. He is an inspiration for research in
our generation. I am immensely grateful to him for blessing this work.
I express my heartfelt thanks to my eminent teacher in history, Professor
B. Surendra Rao, Mangalore University, for his valuable input and lan-
guage corrections on the draft chapters. I am grateful to the anonymous
reviewers of Oxford University Press whose comments have helped in
upgrading its quality. My thanks are also due to Professor Gopal Krishna
Kadekodi, Honorary Professor of Economics, and Professor Sharada Bhat,
professor of statistics at Karnatak university, Dharwad, for the beneficial
discussion I had with them on quantitative legal research. I acknowledge
my gratitude to Ms Aratrika Rayachaudhuri, a student at Kolkata, for
compiling diverse citation styles given in the Appendix. I also thank Ms
Sayantani Bagchi and Mr Saptarshi Mitra for helping me draw the charts.
I extend my gratitude to the editors of the various journals where some of
the chapters of the current book were published for their permission to
include them in the present book.
I express my gratitude to Professor C.K.N. Raja, my teacher and
mentor, for his constant encouragement and inspiring lectures on legal
research methodology. I am beholden to Professor N.R. Madhava
Menon, Professor R. Venkata Rao, Professor G.V. Ajjappa, Professor M.P.
Singh, Professor Ranbir Singh, Professor N.L. Mitra, and my colleagues
in national law universities, Karnataka State Law University, and other
universities. I acknowledge the encouragement given by Hon’ble Justice
Dipak Misra, Justice Mohan Shantangoudar, Justice S. Abdul Nazeer,
Justice P.C. Ghose, Justice M.N. Venkatachaliah, Justice Shivaraj V. Patil,
and Justice Chittatosh Mookerjee and others. My thanks are due to my
wife Usha Bhat, daughter Dr Ramya, son P.S. Ganaraj, and my family
members whose support has been a source of positive energy for me.
Finally, I thank Oxford University Press for publishing this volume.

P. Ishwara Bhat
Hubballi, 12 July 2019
 1
Introduction
Legal Research Methodology, Purposes, and Footsteps

Knowledge and Research

Knowledge is one of the vital capabilities of a civilized society and of
the individuals constituting its fabric.1 Enabling fairness of access to,
and expansion of, knowledge ensures justice, welfare, harmony, and
the blossoming of human personality.2 As opined by Pandit Nilakantha

1
The idea of human dignity, and a life that is worthy of it being bolstered
by knowledge, appears throughout Martha Nussbaum’s work on the capabilities
approach. See Martha Nussbaum, Women and Human Development: The Capabilities
Approach (Cambridge University Press, 2000), 72–3; Martha Nussbaum, Frontiers of
Justice: Disability, Nationality, Species Membership (Harvard University Press, 2006),
70–8. See also John Finnis, Natural Law and Natural Rights (Oxford University
Press, 1980), 80–4. Compared to the competence arising from knowledge, there
lies deprivation occurring due to ignorance. Ignorance is a consequence of lack of
investigation and produces bondage. In Paingala Upanishad, it is said, ‘Bondage
produced by the lack of investigation becomes released by proper investigation.
Therefore one should always inquire.’ (S. Radhakrishnan, ‘Paingala Upanishad’,
The Principal Upanishads [Harper Collins, 29th Impression, 2018] 913–14.)
2
Nussbaum, Frontiers of Justice (n 1), 70–8; Finnis (n 1), 80–4; see also
B. Sudershan Reddy J. in Indian Medical Association v Union of India AIR 2011
SC 2365, 2432:
Knowledge is the vital force that unites people. Knowledge is generated
in diverse circumstances, in the practical arenas that range from a highly
Idea and Methods of Legal Research. P. Ishwara Bhat, Oxford University Press (2019).
© Oxford University Press 2019. DOI: 10.1093/oso/9780199493098.001.0001.
4 Idea and Methods of Legal Research

Das, knowledge ‘comprehends’ the nature of objects, either concrete or

abstract.3 Knowledge grows and flourishes through abstraction of ideas,
and through continual exertion of the mental faculties. Freedom of
thought, scientific temperament, and an inquisitive attitude allow the
knowledge system to grow. Knowledge begets knowledge in an unend-
ing process of wondering, questioning, and finding answers to questions,
and repeating the process with new questions.4 The growth of knowledge
from ancient times to the present has largely traversed the path of such
mental activities. Further, research culminates in the expansion of the
knowledge system. Indeed, it is a joy to watch the light that pierces, by its
flashing sword, the heart of night, the tangle of doubts and confusions,5

technical and clinical laboratory, to the humble farmer, or a hut dweller

eking out a bare subsistence. It is an accumulated gift of humanity to itself.
The knowledge that non-minority educational institutions seek to impart,
is not knowledge that they have created. That knowledge was shared by
people who have generated such knowledge out of love for humanity.
Knowledge is shared by human beings all over the world out of love for
humanity. Knowledge was passed down from the dark and forgotten past,
out of love for humanity. To attempt to convert that knowledge into ‘gated
communities of exclusion’ would be to sow the seeds of destruction of
humanity.
3
Pandit Nilakantha Das, Indian Learning and Culture (Orissa Sahitya
Akademi, 1993), 41.
4
An inscription in front of Crawford Hall, Executive Office Building,
University of Mysore, reads: ‘From wonder to question, from question to
answer, and again from answer to question, the task of full and empty entity of
knowledge moves on.’ Arguing that knowledge encroaches upon ignorance and
research replaces speculation, Lee Loevinger observes:
To gain knowledge requires constant inquiry. The price of progress
is eternal change; the price of wisdom is eternal doubt. These may
seem like high prices, but they are no greater than they have been in the
past, and always before there have been those who were willing to pay
the price for the privilege of contributing to mankind's knowledge and
progress.
(Lee Loevinger, ‘Jurimetrics: The Next Step Forward’, [1971] 12[1], Jurimetrics
Journal, 3–41, 40–1.)
5
Rabindranath Tagore, ‘Fruit Gathering’ in Sisir Kumar Das (ed.), The
English Writing of Rabindranath Tagore (Sahitya Akademi, 1994), 172.
 Introduction 5

and enlightens one to observe the drawing of a new furrow for planting a
‘Hereafter’ in the ‘Now’.6
Knowledge stands in between information and wisdom, and gains from
as well as enriches, both domains.7 Knowledge is not an end in itself, but
it is a means of attaining welfare, good living, social harmony, prosperity,
moral perfection, and such other goals. E.H. Carr points out, ‘Knowledge
is knowledge for some purpose. The validity of the knowledge depends
on validity of the purpose.’8 Ancient Indian seers regarded knowledge and
moral perfection as necessary to each other, and hence tried to develop a
knowledge system through careful reasoning processes.9 When the ‘knower’
of the text and truth also knows the self through reasoning, and acts with
that realization, the task of knowledge stands performed.10 As character
is destiny, and has relevance for greatness of a nation, so also wisdom, by
garnering support from knowledge, guides man towards the path of right

6
Elizabeth Barrett Browning, ‘May 23 Death of Savonarola’, in James L.
Ford and Mary K. Ford (eds), Every Day in the Year: A Poetical Epitome of World
History (Dodd Mead & Co., 1902) cited by Sir Asutosh Mookerjee explaining
the educational process in his convocation address dated 14 March 1908 at
Calcutta University in Reena Bhaduri and Soumitra Sarkar (ed.), Sir Asutosh
Mookerjee: A Tribute (Calcutta University, 2013), 25–36, 28.
7
T.S. Eliot in his poem wondered, ‘Where is the wisdom we have lost in
knowledge? Where is the knowledge we have lost in information?’ (T.S. Eliot,
The Rock: A Pageant Play [Harcourt, Brace and Company, 1934], 7.)
8
E.H. Carr, What Is History? (2nd edn, Palgrave Macmillan, 2001), 22.
9
Dhirendra Mohan Datta, ‘Indian Epistemology’ in Haridas Bhattacharyya
(ed.), Cultural Heritage of India (vol. III, The Ramakrishna Mission Institute
of Culture, 2001), 548–61. In contrast, the approach of declining to act on the
just path or desisting from an unjust path even with knowledge of both brings
disaster, as can be gathered from the leaf of experience of Duryodhana in the
Mahabharata: ‘Janami dharmam na cha meva pravaritti, Janamyadharmam na
cha meva nivritti [I know what dharma is, but I follow it not, I know what
adharma is but I do not retire from it]’ (Prapanna Gita or Pandava Gita, verse
57. Translation is mine.).
10
‘Kevalam saastramaastriptyas na kartavya vinirnayah/Yukti hine vicharetu
dharmahani prajayate [Authority alone is no norm or criterion of action.
Whether our action is good or bad should be determined by reason or individual
judgement. Otherwise error will enter into the determination of duty]’, says
Brihaspati (Brihaspati Smriti, Chapter II, Shloka 12, in F. Max Muller [ed.],
Sacred Books of the East, vol. 33 [The Minor Law Books], trans. Julius Jolly,
Motilal Banarasidas Publishers, 2005 [1889], 284).
6 Idea and Methods of Legal Research

conduct. Thus, knowledge connotes correct cognition (prama), supported

by the source of knowledge known as pramana.
There is a notion that God is an embodiment of truth,11 and devotion
to God implies raising the level of knowledge to the heights of truth.
Ancient thinkers distinguished between apara vidya (lower knowledge)
and paravidya (higher knowledge). While lower knowledge is obtained
through perception and direct experience, higher knowledge is developed
by knowing the truth of existence from within. The right understanding
is derived from true knowledge (vidya), which must be distinguished from
non-knowledge or worthless knowledge (avidya). Linking knowledge to
humanism and compassion, Buddha and Bacon attributed a higher pur-
pose to knowledge, which would otherwise become a tool of the powerful
for exploitation of the subordinate.12
On the basis of a particular level of understanding, a human being for-
mulates his perception of truth, which may not necessarily correspond to
the truth. With greater understanding and perception, however, he is able
to realize a better picture, and can move towards higher truth—similar to
how the expansion of a hole in an opaque screen broadens the vision. The
source of the movement from lower truth to higher truth is the inquisi-
tive act of a curious mind. This is the path of fulfilling rishi runa (or the
pious indebtedness of each one to the tradition of teachers).13 However,
‘true’ knowledge can be contemplated even without reference to God and
can be linked to social utility or other objectives.

11
‘Satyam shivam Sundaram [That which is truthful is God (blissful and
auspicious) and Beautiful]’; ‘To be truthful is the Good, and the knowledge
of truth of greatest benefit. What secures the utmost good of all, verily that
is the truth’ (‘Shantiparva’, Mahabharata 62:29); ‘Nahi jnanesha sadrisham
pavitramiha vidyate [Knowledge is unrivalled purifier]’ (Bhagavad Gita 4:38,
translation mine).
12
Francis Bacon, The Advantage of Learning (Oxford University Press, 1868),
75. See Chapter 3 of this volume.
13
Jaimini and Sabara Swami consider rishiruna as debt due to saints by
the acquisition and imparting of knowledge, which along with devaruna (debt
to God) and pitr runa (debt due to parents by becoming householder and
maintaining the family and begetting children) should be considered in the
course of interpreting smriti. (Sabara Bhasya, vols I, II, and III. Also see, K.L.
Sarkar, Mimamsa Rule of Interpretation, Tagore Law Lecture [1905] 436, ed.
Markanday Katju [Modern Law Publications, 2008], cited in M. Rama Jois,
Legal and Constitutional History of India vol. I [Universal Law Publishing Co.,
1984 reprint 2008], 437–9.)
 Introduction 7

Owing to the aim of equating knowledge with higher purposes,

knowledge attains instrumental value. It was prayed thus in the
Ishopanishad to the Sun God: ‘The plate of gold has covered the face of
truth. Unveil it, O Pushan, so that I who love the truth may see both
truth and justice.’14 This has great bearing on legal research and legal
process, because law has the paramount aim of promoting justice. To
live in openness and light, rather than being confined to the crooked
corners of darkness, is to traverse the path of justice and progress. While
information is only raw data, processing it through abstraction, and dis-
tilling ideas from this stock, can add to knowledge, and calls for appli-
cation of wisdom. As Felix Frankfurter observes, ‘The ultimate concern
of the social sciences, law among them, is the conquest of knowledge—
leading, one hopes, eventually to new and important insights into the
good life of society.’15
As in other fields, in the field of legal education and law’s applica-
tion also, meticulous thinking has great potentiality to contribute to
the knowledge system of law. Since law is a subject dealing with human
behaviour, engaging in reflective thinking before acting has great advan-
tage in shaping right conduct of our self or of others. Law is an inter-
disciplinary subject with close links with economics, sociology, political
science, culture, psychology, and criminology. Transcending the narrow
walls that fragment the disciplines, an integrated and interdisciplinary
approach adds multiple perspectives to the inquiry and looks at the whole
issue in a holistic manner. In order to ensure safety, environmental pro-
tection, and welfare in the manufacturing and distribution process, it
becomes inevitable for a legal scholar to think about science and technol-
ogy in their modern application. A great body of literature pertaining to
the purpose of law, its genesis, and reasons for growth and functioning is
developed by systematic thinking and dissemination of ideas from time
to time across countries.
The factors that greatly add to the field of knowledge are: facts
collected through physical perception and supported by empirical

14
‘Hiranmayena paatrena satyasyaapi hitam mukham/Tattwa pushanna
paavranu satya dharmaaya dristhtaye’ (Ishopanishad, sloka 15 , in Radhakrishnan
[n 1]).
15
Felix Frankfurter, ‘The Conditions for, and the Aims and Methods of Legal
Research’, (1930) 15, Iowa Law Review, 129–40, 139: ‘Let us labor humbly but
passionately, gaining here an insight, revising there an assumption, jettisoning
one error now and perhaps taking aboard a bit of weighty cargo later.’
8 Idea and Methods of Legal Research

evidence; systematic collation and presentation of relevant literature or

data; analysing them through logical reasoning; and interpreting the
data by matching the facts with theory. Positivism inspired by scientific
outlook and a mind influenced by human imagination enable growth
of the knowledge.
Education is inseparable from research. While education imparts
knowledge, research takes the frontiers of knowledge forward. ‘If you
have education without research, that education is bound to become
stale after a few years,’ observes Anil Kakodkar.16 A certain amount of
creativity, originality, and systematic activity add to the stock of knowl-
edge in the onward journey of civilization from generation to genera-
tion. Healthy inquisitiveness, persistent effort to find the truth, and
movement from lower truth to higher truth stimulate the growth of
knowledge.
The social and economic impact of expansion of knowledge through
research is worth noting. On the economic dimension of knowledge,
A.P.J. Abdul Kalam has observed: ‘Knowledge has always been the prime
mover of prosperity and power…. The knowledge society has two very
important components driven by societal transformation and wealth gen-
eration. The societal transformation is in respect of education, healthcare,
agriculture and governance. These will lead to employment generation,
high productivity and rural prosperity.’17 As research is the main con-
tributor to knowledge, it is appropriate to know its nature.

What Is Research?
Etymologically, research connotes searching again and again, or gyrating
around a circle, or even going beyond the circle marginally, or a close
search. The French word recherché connotes thorough intellectual or
academic questions denoting scholarly work. According to P.M. Cook,
‘Research is an honest, exhaustive, intelligent searching for facts and
their meanings and implications with reference to a given problem. The
product, or findings, of a given piece of research should be an authentic

16
Anil Kakodkar, ‘Keynote Address’, in Proceedings of the National
Conference of Vice Chancellors (Swami Vivekananda Sardha Sati Samaroh
Samiti, 2013), 24, 27.
17
A.P.J. Abdul Kalam, Ignited Minds: Unleashing the Power within India
(Pearson Longman, 2010), 67.
 Introduction 9

verifiable contribution to knowledge in the field studied.’18 It is primarily

an attitude of critical interrogation, a search for new questions and new
answers, and relating them both to the changing conditions in which
inquiries take place. The inquiries are targeted inquiries because demands
of the inquiries are determined by societal and ideological needs.
Encyclopaedia Britannica expounds upon the concept of research as
follows: ‘The act of searching into a matter closely and carefully, inquiry
directed to the discovery of truth and in particular the trained scientific
investigation of the principles and facts of any subject based on original
and first hand study of the authorities or experiment.’19 Felix Frankfurter
considered research a deep curiosity-driven intellectual action or behav-
iour addressing the present socio-legal position and making futuristic
projections: ‘For research requires poetic quality of imagination that sees
significance and relation when others are indifferent or find unrelated-
ness; the synthetic quality of fusing items therefore in isolation; and above
all prophetic quality of piercing the future, by knowing what questions to
put and what directions to give into inquiry.’20

18
P.M. Cook, ‘Phi Delta Kappa Fraternity’, cited in F.L. Whitney, The
Elements of Research (rev. edn, Prentice-Hall, 1948), 21.
19
Encyclopaedia Britannica, vol. 23 (Cambridge edn, 1911). C.C. Crawford,
cited in F.L. Whitney (n 18), looks at the research process as a whole and points
out, ‘Research is simply a systematic and refined technique of thinking, employing
specialized tools, instruments, and procedures in order to obtain a most adequate
solution of a problem than would be possible under ordinary means. It starts with a
problem, collects data or facts, analyzes these critically, and reaches decisions based
on the actual evidence.’ In Sanskrit, the word used for research is samshodhana,
which involves samyak (right or appropriate) and shodhana (inquiry); alternatively,
it is called anusandhan. According to Pauline V. Young, Scientific Social Surveys
and Research (4th edn, Prentice Hall of India, 1996), 30:
Social science research may be defined as scientific undertaking which, by
means of logical and systematized techniques, aims to—(i) discover new
facts or verify and test old facts; (ii) analyze their sequences, interrelation-
ships, and causal explanations which were derived within an appropri-
ate and theoretical frame of reference; (iii) develop new scientific tools,
concepts, and theories which would facilitate reliable and valid study of
human behavior.
20
Frankfurter (n 15), 134. He also said:
It [research] is not a method, it is not an object, it is a behaviour….
Research is the systematic indulgence of one’s curiosity—that is, the kind
10 Idea and Methods of Legal Research

We can map the following ingredients as components of research from

the above definitions and other related literature.

• Research involves careful and critical inquiry in seeking facts or prin-

ciples; diligent search for facts and their unprejudiced analysis.
• It focuses attention on a specific problem and tries to resolve it in an
objective manner in light of pertinent facts.
• It makes use of special tools for collection and analysis of data. The
data may include historical evidences, statement of opinions, reports,
answers to questionnaires, experimental data, legal data in the form
of legislation, case law and customs, statistical information, and data
gathered through observation.
• The research problem might arise in situations of daily experiences,
difficulties faced, circumstances of confusion or ambiguity, mandate
given by the funding organization (which may be driven by any one
or more of the aforesaid reasons), or unsatisfied curiosity.
• Research asks for a problem-solving mind, rather than being satisfied
with the available answer or predicament one is in.
• Intellectual discussion of a higher order, original ideas, and creativity
in suggestions and formulations ought to be present in research.
• Research stimulates further research as it gives clues for related inquiry,
and generates curiosity for its further application.
• Research is not confined to activities of higher education. It may occur
in the course of any human activity—agriculture, industry, transport,
banking, commerce, investment, creative and performing art, litera-
ture, education, marketing, labour relations, and so on. In the field of
law, it may take place in finding the appropriate law and fact, in ana-
lysing its application, in surveying its historical growth, in examining
its functioning and evaluating its social dimensions and implications.
The list is inexhaustible.
• The output of research may be invention, production of literature,
recommendation for reforms, solution to the problem at hand, and
better procedure or quality work. Publication and dissemination of
the research finding advance the frontiers of human knowledge and
reflect the social accountability of the researcher.

of research that I am talking about, for I am concerned with research that

aims at the extension of knowledge. Its spring is curiosity; and when sys-
tematically pursued for the elucidation of events, we call it science.
 Introduction 11

• The objective of research is to subject the existing body of knowl-

edge to critical inquiry and to generate the necessary dynamism for
the growth of knowledge itself by expanding its frontiers.21 Dedicated
intellectual activity in pursuit of truth and excellence is implicit in
research, whereas realization of socio-economic goals from the appli-
cation of fruits of research paves the way of national progress.

Legal Research and Its Importance

Research conducted in the field of law addressing any specific prob-
lem in the matter of legal norm, policy, institution, or system; bring-
ing out its implication, background, application, functioning, and
impact; assessing its outcome, efficacy, suggesting the lines of reform
and thereby answering the problem at hand can be regarded as legal
research. Identifying the most appropriate law, determining questions
of fact for the application of law, and suggesting legal reform on the
basis of extensive study also come within its ambit. Frankfurter views
law as reflecting social desire beneath the coercive will of society, and
research in law aims to understand these desires, their origin, their
intensity, the means of their satisfaction, and the cost of consequences
of the means.22

Legal research can be explained by referring to its kinds. It has several

facets such as doctrinal, empirical, integrated, and those touching upon
policy and action. The Council of Australian Law Deans identifies its
major types to include:
(i) Research which provides a systematic exposition of the rules govern-
ing a particular legal category, analyses the relationship between rules,
explains areas of difficulty and, perhaps, predicts future developments
(‘doctrinal legal research’);
(ii) Research which intensively evaluates the adequacy of existing rules
and which recommends changes to any rules found wanting (‘reform
oriented research’); and

21
P.C. Chunder, Golden Thoughts (Karnatak University, 1999), 85.
According to Jawaharlal Nehru, ‘A university stands for humanism, for reasons,
for the adventure of ideas and for the search for truth…. If the universities
discharge their duties adequately, then it is well with the nation and people.’
([7 April 1950] XLVIII [14], Indian Opinion, 1)
22
Frankfurter (n 15), 134.
12 Idea and Methods of Legal Research

Research which fosters a more complete understanding of the conceptual

bases of legal principles and of the combined effects of a range of rules
and procedures that touch on a particular area of activity (‘theoretical
research’).23

Canadian scholars added the fourth category: research designed to secure

a deeper understanding of law as a social phenomenon, including research
on the historical, philosophical, linguistic, economic, social, or political
implications of law.24
Gathering from B.A. Wortley’s description of legal research, it can be
stated that legal research involves sincere and dispassionate investigation
on any research problem in the domain of law selected by a researcher
by formulation of research plans; by choice of appropriate tools for data
collection; and by systematic arrangement and interdisciplinary analysis
of materials undertaken either under supervision or independently and
resulting in a report, article, or book of publishable quality.25 George D.
Braden considers legal research as the study of the relationship between the
world of the law and the world that the law purports to govern.26 He views
the outcome of legal research as producing something new in the field of
law from the legal scholar’s knowledge of both law and facts.27 Roy Mersky
and Donald Dunn state, ‘Legal research is the process of identifying and

23
Submission of Australian Law Deans (April 1986), published in Dennis
Pearce, Enid Campbell, and Don Harding (eds), Australian Law Schools: A
Discipline Assessment for the Commonwealth Tertiary Education Commission
(vol. III, Australian Government Publishing Service, 1987), para 9.15, cited by
Michael Pendleton, ‘Non-empirical Discovery in Legal Scholarship: Choosing,
Researching and Writing a Traditional Scholarly Article’ in Mike McConville
and Wing Hong Chui (eds), Research Methods for Law (Edinburgh University
Press, 2010), 159.
24
Harry William Arthurs, 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 of the Social Sciences and Humanities:
Research Council of Canada, 1983) in Terry Hutchinson, Researching and
Writing in Law (Law Book Co., 2002), 10.
25
B.A. Wortley, ‘Some Reflections on Legal Research’ in S.K. Verma and
Afzal Wani (eds), Legal Research and Methodology (2nd edn, The Indian Law
Institute, 2010), 5–10.
26
George D. Braden, ‘Legal Research: A Variation on an Old Lament’ in
Verma and Wani (n 25), 16–21, 17.
27
Braden (n 26), 22.
 Introduction 13

retrieving information necessary to support legal decision making. In its

broadest sense, legal research includes each step of a course of action that
begins with an analysis of the facts of a problem and concludes with the
application and communication of the results of investigation.’28
Looking at the relation between logic and law, Leonard Boonin feels
that the researcher should evaluate the legal decision on the basis of sound
social standards.29 According to Rajkumari Agrawala, legal research is a
search for authority to verify some hypothesis and is a continuum; it
transcends into the non-legal and extralegal field, as law is part of society.30
She elaborates that its interactive dynamics address the problems of
(i) the relative autonomy of law vis-à-vis the other components of system,
(ii) the relationship between various components within the legal system,
and (iii) the interdependence of one or more components of law within
the legal system.31
Ronald Dworkin opines that legal research does not differ from aca-
demic work in moral and legal philosophy as much as one might think.32
He says that the essence of legal analysis is the discovery of principles that
justify and bring order underlying the rule. Unification of moral concep-
tion beneath the rule with coherent justifications in disciplines such as
economics, political science, or psychology gives a proper understand-
ing of the rule.33 Going beyond this limited style, instrumental research
aims at finding the techniques of driving society forward towards some
goal already established, for example, the right of equality in access to

28
Roy M. Mersky and Donald J. Dunn, Fundamentals of Legal Research
(8th edn, Foundation Press, 2002), 1.
29
Leonard G. Boonin, ‘Concerning the Relation of Logic to Law’ in Verma
and Wani (n 25), 41–52, 51. C.G. Weeramantry regards black-letter legal
research as counterproductive in Asian countries, as the cultural and historical
ethos of the countries and interdisciplinary or inter-cultural study would provide
valuable inputs about the appropriate legal policy; C.G. Weeramantry, ‘Towards
More Purposeful Legal Research’ in Verma and Wani (n 25), 53–60, 60.
30
Rajkumari Agrawala, ‘Indian Legal Research: An Evolutionary Perspective’
in Verma and Wani (n 25), 138–83, 139.
31
Agrawala (n 30), 141–2. She notes, ‘Legal research necessarily overflows
into non-legal areas in its search of data, and also in its search of research methods
and models that traditionally do not belong to law.’
32
Ronald Dworkin, ‘Legal Research’, (1973) 102(2), Daedalus, 53–64.
33
For example, the rule in Donoghue v Stevenson 1932 AC 562 is to be
understood by looking at the moral and economic reasons behind it.
14 Idea and Methods of Legal Research

school. The support that a legal researcher gathers from social sciences is
considerable.
The characteristics of legal discipline—hermeneutic (calling for inter-
pretation of texts); argumentative (prone to arguments from different
points of view); empirical (verifiable on the basis of social facts); explana-
tory (explaining its validity in their historical, economic, psychological
contexts); logical (relying on inferential strength); and normative (influ-
encing human behaviour)—have their own bearing about the method of
research to be chosen or applied for a specific legal situation or issue.34
Thus, law’s features, functions, and potential of social impact affect the
shaping of legal research method.
All personnel in the field of legal profession, whether a law student,
lawyer, judge, researcher, law teacher, law officer, legal advisor, legislative
draftsman, legal journalist, Law Commission member, treaty negotia-
tor, or legal expert, knowingly or unknowingly, use the methods of legal
research and need to uphold the standards of good quality legal writing
for providing satisfactory legal service. However, there are distinctions
between the research conducted by legal academicians and legal practi-
tioners: (i) academic lawyers probe to know why the law exists, how the
law works, and what is its impact upon the society, whereas practitioners
concentrate on what the law is and not on what the law ought to be;
(ii) academic lawyers are interested in knowing the nature and working
of the law in parallel jurisdictions whereas practitioners at subordinate
courts generally confine themselves to the black-letter law of the nation;
(iii) publication is the purpose of academic legal research whereas finding
an immediate solution to the problem at hand is the purpose of practitio-
ner; (iv) comprehensive analysis and conclusion are the aims of academic
researchers, while practising lawyers are accountable to clients who seek
their professional advice and service.35
In spite of these differences, the mutual give and take between these
two sectors and profitability of combining their approaches and activities

Mark Van Hoecke, ‘Legal Doctrine: Which Method(s) for What Kind of
34

Discipline?’ in Mark Van Hoecke (ed.), Methodologies of Legal Research (Hart

Publishing, 2013), 1–18, 4–10, 1.
35
Mike McConville and Wing Hong Chui, ‘Introduction and Overview’
in McConville and Chui (n 23), 2; Agrawala (n 30); Weeramantry (n 29);
Terry Hutchinson, ‘Doctrinal Research’ in Dawn Watkins and Mandy Burton,
Research Methods in Law (Routledge, 2013), 7–33, 7–8.
 Introduction 15

need to be appreciated. The social responsibility of lawyers and their rich

experience and insight stimulate them to go beyond the chores of profes-
sion and offer substantial doctrinal input into the legal system.
The legal profession is indeed a highly writing-based profession. It
requires a time-bound outcome of intensive intellectual action with
adequate orientation towards human rights, welfare, and aspirations of
a rule-of-law society. The civic and professional sense of complying with
deadlines and values of society satisfies the social expectations of this
profession. An inclination to challenge frontiers opens new vistas of the
legal world. The formulation of new doctrines and novel mechanisms
has always led the march of law, taking it to new areas and new heights.
Amidst the tremendous pressure of a competitive profession and global
challenges demanding excellence, providing a satisfactory service depends
upon the possession and application of basic skills of research. Lawyers,
in acquiring necessary knowledge to resolve the client’s problem, and
judges, in understanding the pros and cons of various questions of fact
and questions of law from both sides and also their own estimation or
judicial notice of legal and factual issues, engage in research and use this
tool for solving various problems. Thus, research in the litigation profes-
sion is primarily action-oriented and problem-solving research.

Methodology: Meaning and Implications

‘Method’ (meta hodos) is ‘following after’ or the way of doing a task in
proper order, ‘a special form of procedure or characteristic set of proce-
dures employed (more or less systematically) in an intellectual discipline
or field of study as a mode of investigation and inquiry, or of teaching
and exposition’;36 logy stands for science. It is, simply put, an appropri-
ate way of doing things. Method consists of a body of practices, skill,
procedures, and rules used by those who work in a discipline or engage
in inquiry. ‘Methodology’ is a discourse about methods, a study of suit-
ability of techniques in a particular field of study, and a way of combining
the methods.37 It describes the process and evolves a coherent collection
of theories, concepts, and ideas relating to the in-depth study of par-
ticular discipline. It is used for planning the study; for prioritizing the

36
The Free Dictionary, <https://www.thefreedictionary.com/method>
accessed 27 February 2019.
37
Watkins and Burton (n 35), 2.
16 Idea and Methods of Legal Research

steps involved in research; for identifying and refining appropriate tools

for collection of data; for understanding the processing and analysing of
data; and for systematic exposition of the study’s findings.38
Jane Art Scholte writes, ‘Methodology refers to the manners in which
knowledge is built: that is, the ways that questions are asked; and the
principles and procedures of inquiry that are used to answer the ques-
tions posed. Methodology involves issues both of general approach to
knowledge construction and of specific research tools.’39 ‘Methodology’
also tells one how to proceed objectively and scientifically at all stages of
research starting from identification of the problem and finding the solu-
tion to making the final report. Further, it has a theoretical connotation,
with regard to understanding the basis or bases of a particular theme, by
guiding the thinking or questioning of the field.40 In brief, methodol-
ogy moulds the work, and appropriate method enhances the quality of
the work. Research methodology, hence, means the science of systematic
conducting of research in order to find answers to the research problem
at hand.
Methodology orients the scholar to the task of, and commitment to,
discovery of truth. By concentrating on a first-hand study of authorities
and experiments, it stimulates the researcher to come out with original
findings and analyses. Since law is an interdisciplinary subject, a first-
hand study of the research problem requires insight into other related
discipline/s with the help of experts. The science of method should not
only incorporate these requirements, but also go on evolving and refining
new procedures and techniques depending upon the type of inquiry and
nature of the subject or topic.

H.K. Nagaraja, ‘Research in Law: A Socio-relational Critique’, (2008) 1,

38

Mysore University Law Journal, 1–3.

39
Jane Art Scholte, Globalization: A Critical Introduction (2nd edn, Palgrave
Macmillan, 2005), 269.
40
R. Cryer, T. Hervey, and B. Sokhi-Bulley, Research Methodologies
in EU and International Law (Hart, 2011), 5. According to Peter Caws,
‘A methodology is a theory and analysis in which the general structure of theory
finds its application in particular scientific discipline’—Peter Caws, ‘Scientific
Method’ in P. Edwards (ed.), The Encyclopaedia of Philosophy (1st edn, Pearson
College Division, 1967), 339. For the proposition that methods of inquiry
cannot be considered independent of theory, see Thomas Kuhn, The Structure of
Scientific Revolutions (2nd edn, University of Chicago Press, 1970) and Sandra
Harding, ‘The Method Question’, (1987) 2, Hypatia, 19–38, 24.
 Introduction 17

Surendra Rao writes, ‘All research is grappling with incompleteness to

realize an unrealizable goal of completeness. Hence research is essentially
an attitude, and not just a severely defined programme of rules and proce-
dures that go in the name of methods.’41 There are no sovereign methods
as there are no sovereign answers; there shall be flexibility as to method;
and methods must attend problems.42 Research methods shall help in
expanding rather than excluding knowledge. Researchers cannot afford
to be slaves or prisoners of method, but should accommodate requisite
flexibility. Geoffrey Samuel points out, ‘What a research student needs
to do is to organize the methodological problems and debates within
a framework that will continually remind her to be sensitive and aware
of the important link between the methods applied and the knowledge
obtained.’43 So long as honey is honey, pure and sweet, it is futile to think
from which flower it was collected.
Some scholars have raised an issue of whether legal research has any
independent methodology of its own, or whether it relies exclusively on
methods of social science research.44 J.M. Balkin considers that since
law is less academic and more skill-oriented as a professional discipline,
its domain would be easily invaded by methods of other social sciences.
He observes that complacent with catering to the profession, legal edu-
cation found it comfortable to borrow from other disciplines.45 Even
this borrowing becomes temporary and ad hoc, as no social science
can colonize the discipline of law for a long time, due to competition
amidst the social sciences. Thus, invasion, and not conquest, was the
outcome.

41
B. Surendra Rao, ‘The Past and the Present and Making Sense of Social
Sciences’, (2015) 3, Karnataka State Law University Journal, 16–36, 17.
42
Frankfurter (n 15), 139.
43
Geoffrey Samuel, ‘Comparative Law and Its Methodology’ in Watkins
and Burton (n 35), 100–18, 114.
44
J.M. Balkin, ‘Interdisciplinarity as Colonization’, (1996) 53, Washington
and Lee Law Review, 949–70; Richard A. Posner, ‘The Decline of Law as
an Autonomous Discipline 1962–1987’, (1987) 100, Harvard Law Review,
761–80, cited in Roger Cotterrell, ‘Legal theory and Social Sciences’, (1998)
25, Journal of Law and Society, 171, 178; Peter Zeigler, ‘A General Theory
of Law as a Paradigm for Legal Research’, (1988) 51, Modern Law Review,
569–92.
45
Balkin (n 44).
18 Idea and Methods of Legal Research

The point made by Balkin can be addressed in two ways: one, by deny-
ing separate truth for law distinct from social sciences; and second, by
asserting unique characteristics of legal research, which makes it stand
on its own legs but nourished by other sciences, whether pure sciences
or social sciences. Roger Cotterrell argues elaborately on the first point,
and points to the convergence of law’s truth with social truth as follows:

Sociological insight is simultaneously inside and outside legal ideas, con-

stituting them and interpreting them; sometimes speaking through them
and sometimes speaking about them. Thus a sociological understanding
of legal ideas does not reduce them to something other than law…. At the
same time … law defines social relations and influences the shape of the
very phenomenon that sociology studies. Thus legal and other social ideas
interpenetrate each other.46

Regarding the second point, it should be noted that legal education has
made huge advancements in its academic functioning, in addition to pro-
moting professional skills. In fact, research too greatly helps the domain
of legal profession. In the course of growth of legal research, researchers
began to develop the doctrinal legal research technique through unique
methods of analysis and interpretation, going into the depths of philoso-
phy of the law, and comparing and contrasting with other jurisdictions
or with the past. Policy alternatives have been tested and action-oriented
research has also been employed. Unlike other social sciences, law is
action-oriented. Hence, improving or remediating the condition of the
community or victims by legal action, as an outcome of research, also
came into vogue. Thus, it would be wrong to say that law has no research
method of its own.
Having said that, we should also accommodate for law’s dependence
on social sciences such as sociology, economics, political science, his-
tory, and psychology. Since truth is universal, disciplines which aim at
truth cannot be compartmentalized. Simultaneously, the need for a legal
researcher’s training in handling the interdisciplinary issues of research
cannot be overstated. It is the inadequacy of such training that creates
a vacuum, which invites the ‘invasion’ or ‘colonization’. The quality of
sociological and statistical research done by legal scholars is adversely
commented upon by social scientists. It can only be met by legal research-
ers cultivating better competence.

46
Cotterrell (n 44), 181–2.
 Introduction 19

Why Legal Research?

Legal research serves many purposes. Looking at the function it per-
forms, expectation it arouses, and the consequences it triggers, it is
possible to identify the principal purposes of research as follows: explo-
ration, description, explanation, evaluation, publication, and reform.
Researchers conduct research for attaining any one or more of these
purposes. There cannot be compartmentalization of these objectives.
According to Karl Llewellyn, ‘Methods of legal research depend upon
aims.’47 At one end of the pole, there is an attempt to build a pure
science of law, and at the other there is the goal of solving immediate
practical problems. Most research problems, according to him, fall in
the domain of the latter. In between the predictive function of research
to suggest the way a court is going to decide, and social function of
research, is the task of assessing social engineering. Depending upon the
aim, the method or methods should be chosen, moulded, combined,
and harnessed.

Exploration
The propensity to explore is natural to human beings. The curiosity-
driven acts of exploration generate new theories, trace hitherto
unknown customary laws of community, prove or demolish hypothesis
with scientific data, produce testable data, unearth the experiences and
difficulties of vulnerable sections, and identify social values that should
govern the law. Exploratory research is also associated with inventions
of new tools and refinement of old techniques. From exploration of
the deep sea to that of outer space, and from telecommunication to the
worldwide web, explorations have stretched their fields indefinitely and
have generously contributed to the enrichment of knowledge. It pro-
ceeds with open-ended questions on wider experience. Evolving a new
law on the basis of fundamental spirit of the present legal system is one
of the most important contributions that exploration makes.
The search for values of justice in social contract (Hobbes, Locke,
and Rousseau); in fairness (John Rawls); in access to capabilities (Martha
Nussbaum); and in the reduction of injustice (Amartya Sen) explores, in

47
Karl Llewellyn, ‘The Conditions for and Aims and Methods of Legal
Research’, (1926–30) 6, American Law School Review, 663–81, 670.
20 Idea and Methods of Legal Research

philosophical discussion, the reasons for and means of justice.48 Various

legal theories and concepts of law abound with deeper thoughts which
have been produced by explorative research. Mapping indigenous law,
finding the extent of compliance by industries with labour law or envi-
ronmental law, identifying the best practices of non-profit organizations,
and so on call for exploratory research.

Description
Research aims to systematically describe the background, development,
phenomenon, and application of legal norms, legal institutions, and mech-
anisms. It gathers data, maps the whole regime in its continuity and sum-
marizes its prevalent position. It draws inferences about suitability of the
system, the reason behind its emergence, the social function performed by it
as also of its efficacy or weakness. It analyses the relationship amidst norms,
and makes an objective assessment of their overall functioning. Tracing its
historical trajectories has the potentiality of disclosing human experience
about legal propositions, norms, institutions, and their functioning.
Since the legal system is deeply rooted in the cultural domain of a
nation, a critical understanding of its historical tradition can throw light
on its evolution and development. Research survey of social institutions,
groups, or areas; observation of continuity of social process; and library
and documentary research, which are conducted as part of the descriptive
method, produce a reliable picture about the legal system or social insti-
tutions. A systematic exposition, with facts and figures, of the prevalence
of poverty, gender discrimination, organized crime, and various social
problems throws light on law’s preparedness, achievements, or failures. To
use the words of Rajkumari Agrawala, ‘This method of enquiry naturally
takes the legal researcher into non-legal or extra-legal fields of gathering
the required information.’49

Understanding and Explaining

Legal research can be employed for knowing what the law is, how it is
supported by a specific source, and what its exact implications are. By
logical analysis, by looking to the context and the various meanings

See Chapter 8 of this volume; John Rawls, A Theory of Justice (Harvard

48

University Press, 1971); Nussbaum (n 1); Amartya Sen, The Idea of Justice (Allen
Lane, 2009).
49
Agrawala (n 30), 139.
 Introduction 21

attributed, and by examining different authoritative opinions the

researcher has to suggest the appropriate interpretation or meaning. The
principles of statutory interpretation, common sense, public policy, and
perception of possible consequence are to be harnessed in the process.
Legal research also aims to explain the causal relation between cause
and effect, the reasons behind a phenomenon and their impact. For
example, in the context of appropriate choice of legal policy relating to
the menace of Naxalism, well-conducted research can explain how the
evil is rooted in dissatisfaction and protest of poorer sections against the
eviction of tribals, deforestation, discrimination, and denial of various
facilities and advantages. A superficial explanation would treat it merely
as criminal behaviour and a law-and-order problem. Many of the socio-legal
problems relating to women, children, Dalits, minorities, tribals, and
workers call for explanation-oriented research.

Evaluation
Research enables critical evaluation of the merits and demerits of a sys-
tem, institutions, policies, and approaches. Comparative assessment of
the position in different jurisdictions provides insight into their relative
merit and intrinsic worth. Any evaluation in conformity with human
rights, national unity, welfare orientation, developmental ideology, dem-
ocratic spirit, and social transformation proceeds from specific desirable
standards and appropriate benchmarks. In understanding the attain-
ments and shortcomings relating to the above matters, research-based
evaluation is valuable and reliable.
The impact analysis of law, legal institution, or mechanism is a spe-
cific type of evaluative research. Along with the growth of socio-legal
research, this tool is finding increased application. Its focus will be on
law in action as revealed from contemporary experience. It looks into the
social process underlying the functioning of law and effect of the law on
society. According to Rajkumari Agrawala, ‘Its aim is primarily to assess
the actual working of the legal order in terms of the satisfaction of the
expected object of a given legal provision.’50

Legal Reform
As research has the potential to produce informed public opinion,
to change the mindset of people, and to guide in the task of policy

50
Agrawala (n 30), 140.
22 Idea and Methods of Legal Research

formulation, it can be linked to a reformist goal. The connection of

legal research to law reform is intimate. Law commissions, inquiry
commissions, legislative committees, and special bodies constituted for
the purpose of legal reform conduct legal research on various issues
and recommend reforms. Academic legal research can also make use-
ful suggestions for reforms. However, unlike academic and general
research, legal research as an instrument of law reform has to focus on
making suggestions for improvements in the prevalent law, concretize
reform proposals in precise terms, and concentrate on the change plan
throughout the research.51 Since the agenda of reform is central to such
research, research of this sort has inherent limitations by being con-
fined to specific direction. A typical combination of historical, analyti-
cal, comparative, empirical, evaluative, and critical methods of research
strengthens legal research for reform.

Foresight of Policies
Research may also hint at what might be foreseen as future scenarios.
It may suggest appropriate policy for the future on the basis of cost-
benefit analyses of alternative policies. Such a prognosis should come
from exhaustive study of the past and present, critical trend analysis, and
extrapolation of future events likely to take place as a logical outcome of
the input of causes.
According to F.L. Whitney, prognostic research involves ‘scientific
investigation in which the main and stated purpose is to predict the future
operation of factors investigated, so that inevitable things that must be
done may be controlled more intelligently on the basis of knowledge
about the analyzed trend of their occurrence over a definitely selected
period of time’.52 He considers that the most reliable basis for prognosis
should be found at the level of those inclusive points of view, those quali-
tative values and philosophies which are basic in all human activities.
For example, research on the law of cooperative societies may suggest
constitutional amendments to oblige state laws to provide for autono-
mous, people-involved, and professionally managed efficient bodies. But
with inadequate mechanisms failing to stimulate peoples’ participation,

P.M. Bakshi, ‘Legal Research and Law Reform’ in Verma and Wani
51

(n 25), 111–37, 112–13.

52
Whitney (n 18), 272.
 Introduction 23

as experienced in the sphere of Panchayat Raj, it is possible to predict only

the decorative effect of constitutional amendment.
Similarly, with regard to the decline in contribution of the agricultural
sector to the gross domestic product (GDP) and severe effect of globaliza-
tion upon farmers’ lives, resulting in increased rural indebtedness, it is
possible to predict mass exodus to cities. Research enables a scientific
way of foreseeing future possibilities. According to Rajkumari Agrawala,
‘Predictive studies are useful in gauging the possibilities of misuse of the
proposed measure and help minimize the incidence of undesirable conse-
quences of the proposed measure…. Organized predictive legal research
outside the legislature is a condition precedent for meaningful law mak-
ing today.’53 Standing legislative research bureaus and law commissions
engage in policy studies. Similarly, in the sphere of economic law reforms,
policy research is of great social help.

Publication
Since research creates or tests theoretical formulation on any specific mat-
ter of social importance, and produces testable data, society has great
interest in knowing the outcome of research. While its publication has a
real social dimension, authors of books and articles sometimes conduct
research for the sake of publication. Having been enriched by access to
new knowledge or being challenged by a new point of view, people with
alternative propositions can take the inquiry further. Dialogues and
discourses spin out new lines of discussion. Students, policymakers,
scholars, judges, and executive officers get new insight and ideas from
such publications.

The Footsteps of Indian Legal Research

The prodigious body of legal literature pertaining to the ancient and
medieval Indian period, with diversity of schools, interpretations, and
innovative approaches vindicates the prevalence of considerable legal
research that sustained the Hindu and Muslim legal regimes. The social
dimension of justice, communitarian basis of some key concepts, creative
role of interpretations, notions of lok vidvista (hostility to people) and
kalivarjya (that which is prohibited during the age of Kali) which allowed

53
Agrawala (n 30), 140.
Another random document with
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his native England, which I could not for a moment accept, he would
make abatement of it in my presence.
Upon this Sir Richard Pendragon bent forward and whispered in the
ear of the extraordinary quadruped he was bestriding, for he had the
habit of talking continually to this most strange beast. “’Tis a hard
condition, is it not, good Melanto, for you and me that have such
opinions of our own? But this youthful Don is a mad fellow, is he not,
Melanto? Yet with the permission of Heaven you and I will always
respect the whims of madness.”
Among other things, as became my elevation of mind, I had
wondered many times why this singular quadruped—horse I will not
call it—should bear such a remarkable name. It appeared to be the
height of idiosyncrasy to bestow upon a four-footed beast a name
which could only have been familiar to scholars. And so, to appease
my curiosity and to change the unlucky tenor of our discourse, I said,
“Wherefore, kind and gracious Sir Richard Pendragon, do you call
your four-footed quadruped by the name of Melanto? Is not the
name passing odd for a shaggy animal with a long tail?”
“Well, my young companion, if you must know the reason,” said the
Englishman, “he owes the name of Melanto to his preoccupation with
the things of the mind.”
“Is that the name of one of the learned?” I asked dubiously, because
I had to confess that to myself it was wholly dark.
“Melanto,” said Sir Richard Pendragon, “was the name of a learned
Mongolian who founded a religious order. First a sea captain, he
became an astrologer in his later years, in order that he might confer
with the stars in their courses and the works of nature.”
“I was ignorant of these facts,” I owned humbly, for Sir Richard
seemed to imply that an enlightened mind should be familiar with
these things, “but doubtless they are well acquainted with them at
Salamanca.”
“Doubtless they are, good Don,” said Sir Richard Pendragon gravely.
At this moment the Count of Nullepart was so shaken with laughter
that I feared he might fall from his horse. Upon what pretext he
indulged it I do not know; but as he was much addicted to mirth
which seemed without any true cause to call it forth, I was fain to
ascribe it to his French nationality, which, as all the world knows, has
too little regard for the light of reason.
Perhaps we had been some twenty days on our journey by the time
we came into France. As we approached that curious country, which
in nowise resembles that of Spain, I inquired of my companions
wherein this land differed especially from that of its surpassing
neighbour.
“It is the inhabitants, good Don, that make the difference,” Sir
Richard Pendragon informed me. “They grimace like monkeys and
are addicted to the practice of eating frogs.”
“But, good Sir Richard Pendragon,” said I, “the worshipful Count of
Nullepart is of this nation, and upon my life I have never observed
him grimace like a monkey, and I will answer for it that his table
manners are so delicate that he would eschew the practice of eating
frogs.”
“My dear Don Miguel,” said the Count of Nullepart, smiling, “upon
what pretext do you associate one so inconsiderable as myself with
that meritorious nation, the French?”
“Surely, Sir Count, your name is your guarantee,” I rejoined. “At least
I have always understood it to be so.”
“In that particular you are doubtless correct, my dear Don Miguel,”
said the Count of Nullepart, “at least that is when I travel in Spain.
But now we are over the French border I rejoice in a better.”
I inquired his further title with some surprise.
“Upon the curious soil of France,” said the Count of Nullepart, “I go
by the name of Señor Fulano or Mr. What-you-will.”
“I protest, Sir Count, I do not understand this matter at all.”
“I pray you seek not to do so, my dear,” said the Count of Nullepart.
“It is only that I choose to have it so as becomes a free born citizen
of the world.”
I could get no further enlightenment from the Count of Nullepart, and
no sooner had we crossed into France than my mystification was
increased. At the inn at the first town we came to, of which I forget
the name, the Count of Nullepart declared solemnly that we must
speak for him on all occasions, for by a singular mischance he had
entirely mislaid the use of the French tongue. And, further, he
assured us that this grave calamity had had the unprecedented
consequence of stimulating in the highest degree the growth of his
chin hairs. Indeed, this growth was so remarkable that even upon
our first day in France he had acquired quite a large beard.
Instead, then, of the gay, sprightly, and handsome Count of
Nullepart, an admired member of the French nobility, with whom we
had come upon our journey from Toledo, we had for a companion
upon French soil one Señor Fulano, a staid, sober, and bearded
citizen, who claimed cousinship with the burgomaster of the town of
El Dorado, a place of which I had never heard the name.
“I protest, Sir Count,” said I, “there is no such place as El Dorado in
the length and breadth of our peninsula.”
This caused the Count of Nullepart and Sir Richard Pendragon a
vast amount of mirth, and I heard the latter declare that even his
preposterous horse Melanto was chuckling furiously.
“The truth is, good Master Fulano,” said the Englishman, “these
youthful Spaniardoes have so little fantasy as a trussed fowl.
Personally I ascribe their heaviness to the dryness of their climate
and the rough quality of their wines.”
“That is the root of the matter, doubtless,” said the Count of Nullepart
in a most execrable and rustic Spanish which you would think a
gentleman would be careful not to use.
Be this as it may, from the moment we crossed into France, and
during the whole time of our sojourn in that unprofitable country, the
Count of Nullepart, or Señor Fulano as he would have us call him,
had no French at all. Whenever he had occasion to speak he used
Spanish of a most rustic and barbarous sort.
Much as I disliked the country of France, I disliked the people, their
cookery, their manner of speaking, and their extremely foreign ways
even more. As I had small skill in their language, and the Count of
Nullepart had so mysteriously laid aside that which he could claim,
we had greatly to depend upon Sir Richard Pendragon’s knowledge
and adroitness for the least of our necessities. And to allow a due to
the devil—as my countrymen express it—it must be said that the
well-being of three travellers in a foreign country could not have
been in worthier hands.
Sir Richard Pendragon’s use of the French tongue, which I doubt not
to polite ears must have been as unseemly as his use of Castilian,
was so vigorous and his eyes rolled so freely, the name of God and
his Evil Adversary were so constantly upon his lips, and his hand
was so seldom off the hilt of his sword, that the French innkeepers
vied with each other in doing his behests, almost before he had been
put to the inconvenience of making them known. I cannot remember
—although on several occasions he has informed me of the number
—how many temporal kings of whom Sir Richard Pendragon claimed
kinship and acquaintancy, but at least he wore their manners in such
wise as to know how to be obeyed. Full many an innkeeper have I
seen turn pale at his utterance of the word “Sapristi!” And so
surprised were some of them to find themselves alive by the time he
quitted their houses that they forgot to ask him for the score, or
perhaps it was that they feared to do so. At least I know that in
several instances they must have gone unpaid had not the Señor
Fulano thrown them a silver dollar.
I had no favourable impression of this country of France. I suppose it
is a pleasant country; at least I have met those who allow it to be so;
but to the eye of a true Iberian it seemed to lack colour, politeness,
and originality. Besides, as soon as we came to the first place out of
Spain, of which, as I have said, I forget the name, it came on to rain;
and during the whole time we were in this unfortunate land, which
could not have been less than thirty days, it continued to do so. I
know not whether the inhabitants of the country subsist upon frogs,
as was said of them by Sir Richard Pendragon, but if he spoke truly
it was doubtless in obedience to the dispensation of the good God,
for their favourite food was continually to be seen swimming in the
pools that lay in the middle of their roads.
I suppose it was about the thirty-sixth day of our long and arduous
journey that we came into Paris. It was nightfall when we reached
the capital of madam’s nephew, the famous King Louis. It had been
raining all that day, and the day before that, and it was still raining,
and we were covered with mud as high as our cheek bones. Our
cloaks were soaked through and through and were running over with
water. Further we were hungry and fatigued and in a desperately evil
humour; yet instead of entering the first inn we came to within the
precincts of the city, Sir Richard Pendragon would have us repair to
the auberge of the Compas d’Or, hard by to what is called the
Sorbonne, which Sir Richard pronounced “Sawbones” and said was
the same that in London was called the College of Surgeons.
This auberge of the Compas d’Or—I have no curiosity to learn what
the name would mean in pure Castilian, but they would tell you
perhaps at Salamanca—was, according to Sir Richard Pendragon,
the best inn at Paris. Indeed, it was a trait I had observed in him that
no matter how hungry or weary or out of humour he might be,
whenever he came to a town or city where there was more than one
inn from which to choose, and some places through which we
passed kept quite a number, he would select the one which had the
best food, the best wine, the best corner in which to sup, and the
best chamber in which to sleep. It was due, he said, to the blood of
kings that its board and bed should be princely.
Thus when we came in this pouring wet night to the auberge of the
Compas d’Or, and we had seen to it that our honest horses were
cared for worthily by the ostlers of this great inn, we entered a large
and comfortable room. And no sooner had we made our appearance
in it than Sir Richard Pendragon’s mode of address occasioned
some surprise to the company we found there.
 CHAPTER XXIV
OF SIR RICHARD PENDRAGON’S PASSAGES
WITH THE GENTLEMEN OF THE KING’S GUARD

The large room was half full of a distinguished company. Many of the
persons there assembled wore a handsome and imposing livery;
others wore an equally handsome and imposing garb of peace.
These gentlemen were engaged in playing at the cards and throwing
the dice, and all were men whose air was lofty. Immediately we had
come into their midst, the proprietor of the auberge—I can see him at
this moment, a little round fellow with a great belly—came forward
half nervously, half uncivilly, crying that we must withdraw at once, as
the apartment was reserved for the gentlemen and the friends of the
gentlemen of the King’s guard.
“Oho!” said Sir Richard Pendragon, in a voice that rose like a
trumpet, “these honest Parley-voos will not look askance on the
hereditary overlord of the Russ, his court chamberlain, and his
second minister. Do you assure them, good Beer-barrel, with our
compliments, that they will find us pleasant good fellows when we
have dried our doublets; but for this present we are cold and fatigued
and most infernally hungry.”
I know not whether the manner of this address, the matter of which
was communicated to me at my own request by the Count of
Nullepart, was an offence to the proud feelings of the gentlemen of
the King’s Guard, but one and all turned glances upon us of the
greatest amazement and austerity.
Sir Richard Pendragon, however, paid them not the slightest heed.
Observing a vacant chair beside a small table, he flung himself into
it, and ordered the keeper of the auberge, in the voice he was
accustomed to use to persons of that condition, to bring us wine and
victual.
“But, sir,” said the innkeeper—I am indebted to my worshipful friend
the Count of Nullepart for all that follows—“you and your friends
cannot remain in this apartment. As I have informed you already, it is
only for the use of the gentlemen and the friends of the gentlemen of
the King’s Guard.”
“Well, you French monkey,” said the English giant, rolling his eyes
fearfully, “you may choose for yourself. Either you obey me this
minute, or, as I am a Christian gentleman, I will cut off your ears.”
Swearing an oath that blenched the cheek of the innkeeper, and
scowling with the ferocity that never failed to cow all of this kidney,
Sir Richard Pendragon drew his sword with a flourish, made a
magnificent pass at the air, and stuck it at one pace from him in the
wooden floor.
I think I have never seen more amazement in the human
countenance than this action excited in all who witnessed it. At first
the onlookers seemed unwilling to believe their eyes. That any
human being should enter their presence and thus bear himself was
a thing they could not grasp. And then, when they came to realize
that the Englishman regarded their presence no more than he did
that of the innkeeper, a kind of pitying contempt came into their
faces.
Nevertheless, some little time went by ere they addressed Sir
Richard Pendragon. Conversing together in low tones, they
appeared to wait upon the good pleasure of one among them. Then
they called the landlord, who stood awaiting their commands, and
gave him certain instructions.
Upon receipt of these the keeper of the auberge approached Sir
Richard Pendragon, yet with a good deal of wariness, and said,
“Monsieur, I am instructed by the gentlemen of the King’s Guard to
inform you that, whoever you may be, your behaviour is intolerable.
But as you and your companions are clearly of a foreign nation, they
are loth to admonish you. Yet I am to inform you that if you do not
immediately put up your sword and withdraw from this apartment,
you will compel them to visit you according to your merit.”
Now, although the keeper of the auberge, having both right and
might at his elbow, had spoken with a well-considered civility which
is rare in his class, and the words that he had been instructed to use
were those of an admirable moderation, which in the circumstances
did honour to his patrons, they were not accepted by Sir Richard
Pendragon in a spirit of forbearance.
“Do you presume to outface a Pendragon, you French dog?” he
roared. “For a pint of sherris I would pull your neck.”
Speaking thus, the Englishman took up a cup half full of the wine
that was near to him, and flung it full at the head of the innkeeper.
In spite, however, of this new affront to their ambassador, the
gentlemen of the King’s Guard showed no disposition to hurry their
measures. Again they conversed among themselves; and then a
thin, tall man, with a visage exceeding melancholy, not, however, in
the king’s livery, yet attired in a dress of sober richness, rose slowly
from the table at which he had been playing at the cards. There was
something of majesty in his movements, and as he approached the
Count of Nullepart and myself with a cold air, his mien was worthy of
a cardinal.
“I would speak with you, my friends,” he said in a deep and musical
voice, yet the tone was such as he would have used to his lackeys.
The Count of Nullepart shook his head solemnly, as though he
understood not a word, and said in a rude Spanish, “I have not your
language, Señor Soldado.”
I had to make a similar confession, but, as I hope, in a purer idiom.
“Muy bien,” said this distinguished French gentleman, speaking in a
very tolerable Spanish that put the Count of Nullepart’s to shame
and compared not unfavourably with my own, “Very well, my friends,
a word in your ears. Your conduct is worthy of the highest censure,
but the gentlemen of the King’s Guard are not accustomed to turn
their hands against the canaille. All the same, they pray you to have
a care.”
Thus having spoken with a degree of insolent contempt that few
could have equalled, this Frenchman, and I am sure among his own
nation he must have taken rank as a great lord, turned his back upon
us with a high degree of disdain, and proceeded to regard Sir
Richard Pendragon. The English giant met him with a sleepy
indifference. Thereupon the Frenchman lowered his gaze to an
amused contempt, and withdrew Sir Richard Pendragon’s sword
from the floor.
After examining this weapon with a care that was only half curious
he gave his shoulders a shrug, after the foreign manner, and then
presented it to the Englishman by the hilt, saying, “Put up your
butter-cutter, Monsieur l’Epicier, and when you return into your
peninsula give an additional alms to the Virgin that you find yourself
with as whole a skin as that with which you went.”
Being addressed in this fashion, an odd change fell upon the
Englishman. As in the affair in the inn at Madrid, a kind of sinister
softness overtook him. Immediately he abated his voice into a
modest and humble accent which was quite unlike his previous
immoderation.
“I thank you, good Frenchman, for my poor tuck. It is an ancient arm,
I might say an heirloom; yet once on a day it held the rank of a
sword. At least, in that capacity was it given to an elderly forebear by
Edward the Black Prince, who in his day did some pretty work
among the French. And now, as you say, although it is an old thing, it
still serves to cut butter.”
Thereupon, in the presence of the whole room, which had
suspended its affairs entirely, Sir Richard Pendragon quietly laid the
flat part of the sword against one side of the Frenchman’s cheek and
then against the other.
 CHAPTER XXV
OF SIR RICHARD PENDRAGON’S DUELLO WITH
THE GALLANT FRENCHMAN

Any excitement that was likely to arise was checked by the

Frenchman’s action. With a dark and cold smile on his lips, he turned
to his friends and held up a slender white hand that was covered
with jewels, and besought them, almost in a tone of entreaty, to
display calmness.
Then with a most courteous apology to all who had suspended their
play, and remarking that it was plaguy unfortunate that he must
suspend his own when the cards had smiled upon him for the first
time in a long season, he ordered the landlord to have all the room’s
furniture drawn close to the wall.
While this was being done, the Count of Nullepart went to the
Englishman and addressed him privily.
“This fellow,” said he, “is the first swordsman in France. He is the
hero of a hundred duellos, and he is quite invincible.”
“Is he so, my dear?” said the English giant in his modest voice,
which seemed to feign alarm. “How pleasant it must be for the poor
soul to be invincible.”
Sir Richard Pendragon turned to me and said in a manner of
courtesy I had seldom heard him use, “Prithee, good Don Miguel,
oblige old honest Dickon by going into the stable yonder and
procuring that little rapier of Ferrara steel, which you will find
strapped to the saddle of the meritorious Melanto, who is now eating
his supper of oats like a good Christian horse.”
In obedience to this request, I went forth to the stable to procure the
rapier of Ferrara steel. Upon returning with it into the room, I found
that a goodly space had been cleared in the centre. Both parties to
the duello were standing therein stripped of their doublets. The
spectators, exceeding a score in number, were seated on settles
which were ranged close to the wall.
It was curious to observe the looks of mingled contempt, pity, and
derision of these persons when I approached the Englishman and
handed to him the Italian rapier. Some of them were unable to
repress their mirth. They laughed out loudly, as though my action
was the height of the ridiculous.
Before I had taken the chair that was offered to me, these
adversaries had crossed their swords. If I live to be an hundred
years old I shall never forget the battle that ensued. At the first shock
of steel against steel it was clear that each recognized in the other a
foremost swordsman of the age.
The knowledge did not induce fury nor any kind of excitement. It
rendered them calmer, more wary, and subtle than they would have
been otherwise. And the gentlemen present, each of whom, as the
Count of Nullepart informed me, was a master of the sword, began
soon to realize that one of their peers had come quite unexpectedly
into their midst.
It was not all at once that this was made clear to them. At first they
regarded the contest with smiles that were merely mocking and
incredulous. Naturally it seemed the extreme of presumption that
such a fellow, whose manners and appearance were so barbarous,
should venture to stand up with a delicate and slender Italian
weapon before the first swordsman of the time. But so soon as their
true blades had met, the company began to exchange significant
glances one with another, and in a very little while they realized that
this was no tyro who stood before them.
From the first it was beautiful play. Owing to his stature, it was
necessary that the Englishman should lose something of elegance in
the comparison with his inimitable adversary, but, stroke and
counterstroke, they were perfectly matched.
The spectators inclined to the opinion at first that Monsieur du
Bartas, for that was the name of their champion, the foremost in all
France, was not putting forth the whole of his art; but when presently
they came to perceive how easily his deftest strokes were turned
aside, they began to waver.
It was a long duello, yet it was one of which every phase was
memorable. These two wonderfully accomplished men began to
weave a spell upon their audience; and as their actions grew quicker
and the finer shades of their play declared themselves, the
spectators began to lean forward out of their seats, and with the loud
and ringing music of the steel was mingled “bravas” and all kinds of
applause.
As the combat proceeded the excitement grew more intense. The
spectators seemed not to breathe. For the first time in his career
their invincible champion stood in danger. No matter what the
cunning and the incomparable skill of his devices, it began to appear
that unless the unforeseen occurred to save him he went in danger
of his life.
It was then that the buzz of voices and the murmurs of applause
grew hushed, and soon the gay shouts, the sneering smiles, the
sarcasm of their commentary, yielded to a dead silence. The circle of
onlookers craned ever closer to the combatants, yet now not a word
was spoken; and upon the faces of many there was a mingled
surprise and consternation that they sought not to conceal. For the
countenance of the first swordsman in France was growing livid. The
sweat had crept upon his brow. Proud and brave man though he
was, he had begun to feel himself in the grip of a power beyond his
own.
As with amazing skill the Englishman parried stroke after stroke,
which were themselves the fine flowers of his adversary’s talent,
each one of which must have sufficed to place one less in genius out
of his life, I overheard a bewildered gentleman of the King’s Guard
say to a companion, “This fellow must be the Devil!”
All at once and quite suddenly there came the sound of bare steel
striking the ground. The celebrated Frenchman, the hero of a
hundred duellos, stood without a weapon before his adversary.
It was a moment I shall never forget. The sympathies of the Count of
Nullepart and myself were of course engaged upon the side of Sir
Richard Pendragon; but as this noble and imperious French
gentleman stood with head upheld and a look of disdain upon his lips
to receive the penalty of his failure, I think, in common with all the
other witnesses of this splendid encounter, the count and I would
have been only too eager to avert it could we have done so.
Yet Monsieur du Bartas looked not for mercy. He was known as one
who neither gave quarter nor expected to receive it. None, therefore,
looked for mercy for him. The Englishman had gained the victory in
fair fight; it was perfectly just that he should enjoy its fruits. Such an
expectation, however, merely shows how imperfect a thing is the
science of reason, and how simple it is to do less than justice even
to our friends. For none could have foreseen, least of all the Count of
Nullepart and myself, that Sir Richard Pendragon, one of a rude and
uncivilized nation, would stoop to pick up a fallen sword and, with a
bow that would have become the most accomplished of courtiers,
return it to his conquered adversary.
It was then that the silence of the gentlemen of the King’s Guard
yielded to expressions of pleasure. They crowded round the victor,
shook him by the hand, paid him most flattering addresses; and
nothing would content these Frenchmen, regaled as they had been
by great generosity and the highest skill, save that the Englishman
and also his companions should remain with them, drink their wine,
and partake of their hospitality.
Indeed, the rest of the evening was the most delectable it could have
been given to any travellers to spend. We were treated with the most
distinguished consideration by those who were not accustomed to
exercise it on a light pretext. Yet it soon became clear that they had
come to regard their guests as mysterious.
The French, as all travellers allow, are people of quick parts; and
while they feasted and flattered us, it was plain to these gentlemen
that we were other than we seemed. With all the courtesy possible,
for even the Englishman could doff his brusque manners when it
suited his humour, we declined to disclose a word of our embassy,
contenting ourselves merely with inquiring whether the King was at
Paris. It was our good fortune to learn that he was.
As the evening passed we felt ourselves to be the objects of a
particular scrutiny. Our new friends grew most curious concerning
us. After we had supped they asked us to take a hand at the cards.
My two companions accepted this invitation; but I refrained from it
because I was still very poor, and perhaps quite as conclusively
because my northern breeding induces the virtue of caution.
No sooner had Sir Richard Pendragon and the Count of Nullepart
begun to play than the interest of these gentlemen grew lively
indeed. This was not so much aroused by the demeanour of the
conqueror of M. du Bartas, but rather by that of the Count of
Nullepart, who, in spite of his long beard and rustical Spanish,
betrayed his true condition in unsuspected ways to those who were
themselves high-born.
First, they observed his white and shapely hands as they lay upon
the board. Again, there was the delicacy of his features, the natural
politeness of his gestures; and yet again, they could not fail to detect
the subtle and charming quality of the accent that lurked beneath his
assumption of a rustical brogue. Thus it fell out that presently they
came once more to confer among themselves, and then one of these
gentlemen said with a most profound respect to the so-called Señor
Fulano, “By my life, monseigneur, is not this a——”
Before this gentleman could conclude his remark the Count of
Nullepart answered him in his charming natural speech and in the
French tongue, “My good Clery, you are seldom prudent in the
evening; and I am told it is entirely due to this misfortune of yours
that you still remain without advancement. All the world knows that at
Paris nowadays one must learn to see little and to speak less.”
No sooner had the gentlemen of the King’s Guard recovered from an
astonishment which at first seemed to overwhelm them than they
began to shout with laughter. For what reason they should thus view
the matter I cannot explain; but from that moment a more formal air
was imparted to the assembly. Something of ceremony declared
itself, and the manner of all present became perceptibly less easy.
Still this may in a measure have been due to the fact that these
gentlemen put forth remarkable and in some cases highly ludicrous
efforts to conduct their discourse in Castilian.
In one particular, however, our singular companion saw fit to rebuke
them. They persisted in bestowing upon him the title of
“Monseigneur,” so that presently he was moved to exclaim, “I pray
you remember, my good friends, that I am neither more nor less than
the worshipful Señor Fulano, worshipful kinsman to the worshipful
burgomaster of the worshipful town of El Dorado. Beyond this I claim
no title. And when the Señor Fulano comes among you to-morrow at
the Louvre, which a conspiracy on the part of fortune has rendered
necessary, I pray you not to call the honest person out of his true
degree.”
Laughter and surprise greeted this speech; yet a kind of respect was
paid to it, and during the rest of the evening they were careful to
heed this request.
These gentlemen sat at their gaming far into the night. The play was
high; gold pieces were numerous, being piled upon the table and
exchanged freely. Also they drank an immense quantity of a very
superior kind of red wine. Whatever the individual fortunes of the
players, and of these I cannot speak, there was at least one among
them who rose from the board considerably richer in the things of
this world than when he sat down at it. I allude to Sir Richard
Pendragon. Both the Count of Nullepart and myself were fain to
observe that, whenever it came to the Englishman’s turn to take the
dice in hand, quite as often as not he would have the singular good
fortune to cast the double six.
 CHAPTER XXVI
OF OUR APPEARANCE AT THE LOUVRE
BEFORE KING LOUIS

At noon the next day we set out upon our embassy to the King of
France. However, before so doing, at the instance of Sir Richard
Pendragon we repaired to a furrier’s shop in a little narrow street
behind the church called Notre Dame, which the Count of Nullepart
informed us was the first in the city. Here we purchased three
baldricks of an extraordinary brilliancy, trimmed with ermine.
To our surprise, Sir Richard Pendragon disbursed the sum
necessary to this magnificence, for his winnings of the previous night
had been considerable. Besides, as he declared, it was due to our
mistress “that the plenipotentiary-extraordinaire of the young queen’s
majesty should appear at Paris like a man of condition, and that the
retinue by whom he was accompanied should appear in the same
guise, because they had worldly minds at the French court, and it
would be easier to conduct state business if they went upon terms of
familiarity with the current mode.”
To this piece of wisdom the Count of Nullepart assented laughingly.
And when our leader came to put on his baldrick this mirth bubbled
up to a point, for Sir Richard Pendragon was fain to add to it a pair of
new shoes with large silver buckles and a handsome collar of lace.
I confess that in this I approved of the Englishman’s conduct. And I
think we both felt the Count of Nullepart’s laughter to be somewhat ill
judged and out of place. Because in a city like Paris, which in the
light of day is not unpleasing, and among such a people as the
French, whom travellers allow to have a savour of the civilized arts,
we deemed that a certain richness among men of birth was not only
expedient but necessary.
Therefore I put on my new baldrick trimmed with ermine, also my
new shoes with silver buckles and my fine collar of lace which also
had been given to us. And let me tell you, reader, that never in my
life have I felt myself to be attired more worthily, a little the plain side
of splendour. Even then I felt that I did not compare with the leader of
our embassy, who, as he said, “to remove any lingering traces of the
provinces,” added to the bedizenments of his person a number of
jewels which his good fortune of the previous night enabled him to
obtain; and, further, as a crown to the whole, a sort of jewelled
cockado that is worn by the potentates of Eastern climes.
To obtain a field for the display of our magnificence, of which I
believe the three of us were proudly and justly conscious, we
proceeded slowly, arm-in-arm, down the centre of the streets of
Paris; and of almost every second person that passed us Sir Richard
Pendragon inquired in a haughty voice of the way to the palace of
the King of France.
I suppose it was our high and martial looks in company of our
resplendent attire—I may say that Sir Richard Pendragon had
chosen scarlet for the colour of our baldricks, that they might
contrast elegantly with the bright yellow of his own—that soon began
to attract the notice of the Parisians. Ere long a number of these
curious persons were following in our wake. By the time we had
traversed the length of two streets something of a crowd had
collected upon our heels; and this circumstance appeared to afford
Sir Richard Pendragon a great deal of pleasure.
“These good souls can see we are on the way to King Lewie,” said
he. “I am perfectly sure they mistake me for the Emperor Maximilian,
although I have five inches the better of my old crony in the matter of
perpendicularity, and at least six in the matter of circumference. Still
they cannot be expected to be informed of it. And prithee, good Don
Miguel Jesus Maria de Sarda y Boegas, do you observe how all
eyes are for my Persian cockado? I doubt not it looks very brave with
court livery; and it will afford me not the least surprise if King Lewie,
who is a good fellow, comes to adopt it at the court of France.”
Just as the English giant had concluded this speech, a little old
woman came up behind him and plucked him eagerly by the cloak.
“Good Master Tumbler,” said she, “if you will stand on your head I
will give you a groat; and if you will swallow your sword you shall
have a new franc piece.”
Sir Richard Pendragon plucked his cloak away fiercely from the old
creature and walked on with his head in the air, as though he had not
heard her. During the next moment, however, an unmannerly urchin
had thrown a cake of mud at the Persian cockado.
By the time we had come to the gates of the Louvre, the press was
so great that it had become difficult to proceed in it. Indeed,
according to the Count of Nullepart’s computation, and he seemed to
derive much pleasure from assessing it, it could not have been less
than a thousand persons.
To the astonishment of our leader, when we came before the gates
of the palace, the soldiers of the King’s Guard, who kept the royal
entrance, declined to allow us to pass. And when Sir Richard
Pendragon threatened peremptorily to cut off the ears of their
captain, the prospect of our gaining admittance did not seem to
improve. For some reason, which I cannot explain, the attitude of the
King’s Guard seemed greatly to please the mob that was pressing
around us.
Sir Richard Pendragon was fain to produce the cartel of our mistress
duly sealed and inscribed: “To Lewis Our Nephew in His Court at
Paris, by the hands of Our Good Servants.” Yet even this document
went without effect, if only for the reason, as the Count of Nullepart
assured us, that the captain of the King’s Guard was unable so much
as to decipher the superscription.
In the next minute there was almost a riot in the open street. The
English giant, seeming to detect cries of derision arising about him,
turned to the ever-increasing multitude and observing a low fellow
that was near him in the act of making an insulting grimace, he made
no more to do, but lifted him up bodily, and flung him like a sack of
flour upon the heads of the people.
Upon this, mud and stones began to fly past us. And a missile
having struck Sir Richard Pendragon upon the cheek, he drew his
sword and began to lay about him lustily with the flat of it.
Our situation was now one of great peril. Three persons, whatever
their valour, were powerless to defend themselves from a press of
this magnitude. I incline to think our fate would have been a sorry
one had not the mother-wit of the Count of Nullepart arranged our
deliverance. While the mob were surging angrily around us and
stones were flying about our ears, our companion spoke some words
in a low voice to the captain of the King’s Guard, and this time he
used the French tongue. The effect was like magic. The captain
instantly removed his plumed hat, and bowing very low, led us
through the gate and into the precincts of the palace, leaving his
company to deal in what sort it suited them with a mob that by now
was in no gentle humour.
Once within the walls of the palace, the Count of Nullepart dismissed
the King’s officer with a word of thanks; and then, under the count’s
own direction, we entered an exceeding large antechamber, which
was thronged with as fine a company as I have ever beheld. There
were priests of high learning and dignity, wearing their soutanes;
there were soldiers in bright doublets and shining armour; there were
austere and sombre-coated ministers; there were gay and
handsome courtiers in very modish and brilliant attire; and beyond all
else there was a number of beautiful ladies.
This fine company was talking very loudly and laughing very gaily at
the time we came into the room. But our entrance being a public
one, mainly owing to the manner in which Sir Richard Pendragon
clanked his spurs on the marble floor and the great voice in which he
conversed with the Count of Nullepart, the attention of all present
was immediately drawn upon us. Now I know not whether it was due
to the magnificence of our apparel or the pride of our bearing, yet the
lively talk and the gay mirth subsided in the most sudden manner.
Each person in the room seemed to turn to regard us with a
wonderment that scorned disguise; and then the silence was broken
by a titter from one of the fine ladies.
The court gallants who surrounded them were not slow to follow their
example.
The leader of our embassy, however, was not disconcerted in the
least by this public rudeness. Sir Richard Pendragon stroked his chin
with a disdain that appeared to amuse these courtiers the more; and
then, turning at his leisure to the richly attired gallant that was
nearest to him, he said in a voice like thunder, “Hi, you, sirrah, you
with a face like a monkey, do you go to the King your master, and do
you inform him that an embassy is come from Spain upon an affair of
delicacy.”
The youthful courtier placed his jewelled fingers on the hilt of his
sword. His unseasonable mirth was now changed to a look of
ferocious anger.
“Do you hear me, good jackanapes?” said the English giant in his
great insolent voice that surmounted everything and re-echoed to the
high ceiling upon which was a painting of Venus and Cupid.
“Mon Dieu!” cried the courtier, livid with passion, “I have a mind to
run you through the body, you canary-coloured barbarian!”
“A mind, did you say, good jackanapes?” said the Englishman, with a
roar of laughter. “Why, a thousand such poor dogs could not muster
a mind among you.”
By now all the persons in the room were gathered around us. The
grave among them were amazed; the young, and particularly those
that were female, shaken with mirth; and the rest in all degrees of
anger, incredulity, excitement, and a desire for diversion. Yet so
sorely incensed was this youthful gallant that I verily believe, the
place and the company notwithstanding, he would have been moved
to an act of open violence to avenge the insult that had been set
upon him, had there not stepped forth from the throng one who bore
every mark of dignity and high consideration.
“I ask your pardon, Monsieur Ambassador,” said he with a courtesy
that was very grave, “but if it is your desire to have an audience of
his majesty the King, will you have the good kindness to accompany
me into another room.”