The Design of Legal Research

law School
USB1

Table of Contents

1.Problem Statement
2.Problem formulation
3.Hypothesis
4.General objective and specific objectives.
5.Justification
6.Framework
6.1 State of the Art
6.2 Theoretical framework
6.3 Conceptual framework
6.4 Legal framework
6.5 Contextual Framework
7. Methodological design.
8. Schedule
9. Budget
10. Tentative table of contents
11.Bibliography
Presentation
In accordance with the requirements of the Ministry of National Education, Higher
Education requires the incorporation of fundamental curricular aspects, aimed at the
training of comprehensive professionals who develop four specific characteristics:
learning to be, learning to know, learning to do and learning to sharing , all of these
aimed at the foundation of professional citizens, who, rather than being specialists in
certain areas of knowledge, are people capable of contributing to the social
development of their communities, in a regional and national environment, taking
into account the impact and the demands of the global.

In this sense, the development of research skills2 It allows postgraduate law

students to qualify in a context that is more demanding every day, due to the
dynamic changes that respond to the same market demands, and that at the same
1 Working document prepared by Diana Marcela Bustamante Arango, Graduate in Literature, Universidad del
Valle; USC Lawyer; Specialist in Private Law, UPB; first-year student Master's Degree in Human Rights Defense
and International Litigation, USTA; GIPODERI researcher, categorized in “A” by Colciencias, USC; Coordinator
of the Center for Law Studies and research professor, USB. diana.bustamante00@gmail.com
2 Etymologically research , comes from the prefix in which means to enter, ir which means in search, and
vestigium which means footprint. Cf. Lara Sánchez Leoncio, Legal Research Processes, UNAM Legal Research
Institute, first edition, Mexico, 1991, p. 28.

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time contribute to the construction of social subjects, Therefore, scientific research is
“a human activity of a social nature through which the individual, through indications
provided by sources, discovers or presumes the existence of new things, verifying
their conclusions.”3 .

Now, in a strict sense "by legal research we must understand the set of activities
aimed at the identification, individualization, classification and registration of the
sources of legal knowledge in its systematic, genetic and philosophical aspects."4

A research training5 It allows the strengthening of skills that encourage the student
community to develop its critical and purposeful vision of the world. We are facing a
substantial change in education, a paradigmatic transition between the structural
model of transmission and application of technology, towards one of creation and
innovation that contributes to the autonomous construction process of students with
a critical and argumentative approach, oriented always to the creation of new
knowledge.

In response to these imperative needs that require holistic training, this document is
presented that operates as a guide to address problematic axes that question the
legal universe, in such a way that by following a series of steps that allow planning
and organizing the questions, research projects are built6 that result in scientific
articles that contribute to the innovation of knowledge in the field of law, focused on
creating discussion forums that create an academic community in our faculty and
are projected in the regional, national and global context.

The Faculty of Law of the University of San Buenaventura, with the clear intention of
tracing the profile of its graduates, in response to the PEB 7 , has chosen a fragment
of reality, from many possible ones, a macro research problem, Access to Justice:

3 Bunge Mario, (…)

4 Lara Sánchez Leoncio, Op. Cit. , p. 33.
5 Scientific research is aimed at solving theoretical or practical problems, aimed at the refutation of hypotheses,
the production, development, confirmation or confrontation of theories.
6 The research project should be understood as a document that contains a work plan, with the conceptual,
theoretical, methodological, administrative and financial elements to carry out an investigation. The project is a
fundamental instrument in the planning, orientation and direction of research in law.
7 Bonaventurian Educational Project.

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challenges in a globalized context , with the purpose of channeling its academic-
research efforts in making a concrete contribution that reduces the gap between the
triad made up of the community, the business sector and the government sector, in
such a way that the institutional training effort results in comprehensive
professionals who question and promote solutions for their environment.

1. Problem Statement

First of all, specify that you have a research problem when you find a disagreement,
inconsistency or concern regarding something, which in this case questions the
science of law, its practices, its norms, its coherence with the context, or its
foundations. ideological and theoretical.

In this section the object of study or research must be defined.8 , this is the selected
problem that responds to a fragment of reality chosen among many others to be
analyzed, taking into account aspects such as the subjectivity of the researcher,
taking into account the interests, training and experience, among other relevant
elements. ; Likewise, when deciding the object of study, the relevance 9 and
relevance of the chosen problem. “The selection of research problems should be
made based on considerations of thematic relevance, social relevance, and interest
of the researchers. Cardoso suggests, among other aspects, looking for a research
problem that is: 1) viable, in terms of human resources (that is, an adequate
research group) and documentary resources (availability of sources), and 2) original
in such a way that contributes something new to the development of knowledge in

8 The object of study may be constituted by a) legal norms (forms of creation, interpretation, application of the
norm and its relationship with court rulings; this type of approach is the one carried out from legal dogmatics.
Likewise, we find at this level the analyzes carried out from legal technique, legislative technique, jurisprudential
interpretation and what concerns constitutional theory); b) the content of the norms , in this case a discussion
is assumed about the circumstances that will later become facts or legal acts of social, economic, political or
cultural content. In this type of problem axes, research from legal sociology, national or international economic
law, political science, among others, is usually used.
9 “It is worth asking what is meant by relevance and pertinence, since there are different positions on the matter.
For those who are in the currents that relate the theoretical, a new investigation must “cross the frontier of
knowledge”, which is not easy to establish, but it can be stated that the results of a study can contribute to
generating new knowledge, generating debates, and in identifying information gaps. “Those with a greater
orientation towards a commitment between science and action consider that the selected topics should include
problems that affect numerical majorities, as Raúl Rojas Soriano (1996) states.” Pastrana Buelvas, Eduardo,
Social Research , magnetic document. Research Professor of the Master's Degree in International Relations at
the Pontificia Universidad Javeriana, director of the GICPODERI Research Group, recognized and categorized
in “A” by Colciencias, 2009, p. twenty-one

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the respective field. Cerda (1996) mentions the aspects of personal interest and
familiarity with the topic as important factors for the process.”10

In order to develop this point, a contextualization must be carried out 11 of the

problem, in this sense aspects such as the background of the research problem
must be specified, that is, what the situation was like before it became a problematic
reality; Subsequently, the current situation of said problem must be indicated, that is,
from when it became a problem, then the characteristics of the problem in its current
context are established, in other words, the problem is described, Explain.

It is necessary to indicate that once the research problem is identified, initial

documentation must be carried out, which aims to contribute to the conceptual
precision of the problem, without which it would be impossible to begin the
development of the research project.

This problem can be understood in three dimensions: the axiological, the normative
and the factual, which in turn will have two ways of being faced: from the dogmatic
research method or from the socio-legal method. 12 . As for the first, the axiological13 ,

10 Pastrana Buelvas, Eduardo, Op. Cit. , twenty-one.

11 “They are the aspects that influence the problem from the outside: they can be at a macro, medium or micro
level. Its existence responds to the fact that social problems are always related to other larger social problems,
since no particular case occurs independently of its context.
Such contextual factors should contribute to clarifying the problem, to situate it within a broader panorama,
within a general social problem. It is like the backdrop that is presented to the reader, and that locates the
phenomenon that is immersed in this entire context. They can be legal, political, social, cultural aspects, laws,
processes, etc. Its inclusion in the context does not imply that the study will address all these dimensions, but
the consideration of these interrelationships provides keys to identifying fundamental aspects of the problem.”
Pastrana Buelvas, Eduardo, Op. Cit. , 22.
12 Both concepts will be expanded later, for the moment the first (legal dogmatics) should be understood as
having law as its object of study and the second (the socio-legal approach) “in the broadest sense, (…) are
studies that They link Law with other social and human knowledge, including economics, politics, sociology,
criminology, culture, etc. In a strict sense, socio-legal is the field of sociology of law. “This discipline tries to
establish the relationships between positive legal regulations and social realities.” Germán Palacio, Socio-legal
research: to challenge sterile professional complacency, in Law and Interdisciplinarity, National University of
Colombia, Bogotá, 1994, p. twenty.
13 This dimension is made up of the values and general principles of law. In this order of ideas, values make up
“the axiological catalog from which the meaning and purpose of the other norms of the legal system are derived.”
Constitutional Court, sent. C-1287 of 2.001, M. Q. Marco Gerardo Monroy Cabra. “ Values are considered as
abstract and open-type norms that guide the production and interpretation of other norms, and as such set
content criteria for other norms and therefore prevail over principles and rules.” MONROY CABRA, MARCO
GERARDO, The Constitution as a source of law: system of sources , in the collective work Anuario de Derecho
Constitucional Latinoamericano , Montevideo, Konrad Adenauer, 2002, page. 25. In turn, the principles can be
understood in two senses: “The principle, as a creative process of the main norm or principialization, must be
defined as follows: preexistence of a fundamental and social value, whose apprehension by the community or
primary constituent generates the conviction of coercive obligation of that same value. ” The second definition,
the principle as a result of the creative process is defined as: “ the legal, fundamental, imperative, universal,

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we will say that it is a questioning or social assessment made to the law in search of
support from “what is correct”, from what should be.

In this case, it responds to research that seeks to illuminate the legal norm from the
general values and principles of law in order to find the spirit of meaning that
contains and determines the norm and in this way determine its nature with respect
to the conception that a society have justice. Therefore, addressing the legal
problem from this aspect implies verifying its teleological function, that is, the
correspondence or not of the values and purposes of law. “Justice, the general
interest, the common good, the public good, social well-being, the legal security of
individuals and social groups, are values that have historically been advocated by
law, expressed as a system of a political organization. and determined legal, that is,
ways of being and goals to be achieved by a state-organized sovereign society.”14

On the other hand, the normative dimension seeks the confrontation of the law on
the same law, in a meta-language that questions and reflects on the legal system
itself, its inconsistencies; The problem under study focuses on questioning the
validity15 formal and material of the legal norm; Likewise, reflecting on the scope,
validity and possible conceptual or interpretation absences constitutes a critical
approach to law as an object of study.

Lastly, we find the factual approach16 , in this case the social fact is analyzed in two
ways: on the one hand, the facts that give rise to the law and on the other, the
topical, axiological, explicitly or implicitly positive norm, which serves to create, interpret and integrate the
order .” Valencia Restrepo Hernán, Nomoárquica, Legal principialistics or philosophy and science of the general
principles of law , p. 57, Ed. Temis, third edition, Bogotá, 2005. on the subject also, Robert Alexy, Theory of
Fundamental Rights, Center for Constitutional Studies, Madrid, 1993. among others.
14 Lara Sánchez Leoncio, Op. Cit. , p. 39.40.
15 “The legal validity of a norm （ … ） now means that both things are guaranteed at the same time: both the
legality of the conduct, in the sense of a generalized following of the norm, which if necessary can be forced
through sanctions, as legitimized by the rule itself, which makes possible a monitoring of the norm based in each
case on a positive consideration before the law.” Habermas, Jürgen cited by García Amado, Juan Antonio, The
philosophy of law of Habermas and Luhmann, Universidad Externado de Colombia, series of legal theory and
philosophy of law, Bogotá, 1997, p. 19.
16 “Legal norms must have a factual dimension, which has to do with the two interrelated aspects of their
habitual compliance, on the one hand, and the coercion that supports it, on the other. Now, the function of social
integration that corresponds to law in complex societies （…） can only be effectively fulfilled if the norms have
an element of legitimacy that goes beyond their pure coercive imposition and enables the minimum acceptance
necessary for their follow-up. （ … ） They are legitimate when their recipients “can at the same time feel, as a
whole, as rational authors of those norms” that is, when the procedure for creating the norms reproduces the
argumentative and consensual procedure of communicative reason; or in other words, when the democratic
procedure is followed without distortions.” García Amado, Juan Antonio, Op. Cit., p. 19.

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impact of the norm on society; for example, verification of the effectiveness of the
norm applied by legal operators, also known as law in action or living law. These
types of approaches are developed through the socio-legal research method, which
does not necessarily require field work, in other words, the socio-legal method can
be theoretical-documentary or theoretical-practical.17

1.2 Formulation of the Research Problem

After the panoramic view that points out some characteristics of the identification of
the research problem carried out in the previous section, we continue with the
formulation of a general research question that synthesizes the outlined approach.
“In practice, you can choose to start with one to reach the other, or vice versa. In
one case we would be facing an inductive type procedure, and in the other a
deductive type. In the inductive, it would begin with the formulation of the question,
as the most concrete aspect, and from this its approach would be built, as a
relationship with a more macro context. But the opposite process can also be done,
deductive in nature, and that is to begin with the formulation of the problem, to end
with the formulation of the question as the demarcation of the study.” 18 However,
according to the standards managed by Colciencias in the presentation of the
research project, the approach must be recorded first and then the formulation,
which does not prevent you from carrying out the procedure in another way, only for
the purposes of recording it in the document. You must attend to what is indicated
by Conciencias.

The formulation is then the brief, clear and precise statement of the problem,
preferably in the form of a question. The formulation is the question asked in a
precise, clear and concrete way. Example: What is the validity of the pro homine
principle , its characteristics, projections and applicability in the national and
17 The difference between the first and the second lies in the system of sources used; For the first case, the
sources are: law, jurisprudence, doctrine, as well as specialized knowledge from other fields of social sciences
(economics, political science, history, sociology, etc.) Ultimately, theoretical or documentary sources. For the
second case, the primary sources are the social fact, in such a way that the information that prevails will be that
obtained directly through the application of research techniques such as survey, interview or observation under
the quantitative paradigm of science. , which does not mean the absence of the theoretical component.
18 Pastrana Buelvas, Eduardo, Social Research, Op. Cit., p. 22

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international legal order?

In the previous example we can see how a number of elements are presented that
require segmentation for their analysis, we find therefore the thematic content, here
we talk about principles, this takes us directly back to a legal investigation that
raises the problem of law from the axiological category, but that also has factual
references since it contextualizes it from today's national and international legal
order with future projections, in the specific aspect of its validity.

From here the object of study is derived by logical extraction, which is specified from
the statement of the problem posed, and which in this case corresponds: Investigate
the Pro-homine principle, in relation to its current validity, which implies analysis of a
legal-political nature, to specify its essential elements and its projection of
application in two major contexts of reality, the national context and the international
context.

1.3 The Hypothesis

In attention to the etymological sense, the word hypothesis comes from two Greek
words hypo , which means below, and thesis , which is understood as support or
foundation. “The hypothesis can also be defined as an assumption that allows
establishing relationships between them and the problem to be solved, and whose
value lies in its ability to establish that relationship and explain why it occurs.”19

We have said that the research problem is configured with the question or statement
made by the researcher regarding a theoretical or practical need. These questions
or statements are resolved preliminary to the investigation with the formulation of the
working hypothesis. In this sense, the hypothesis is the initial and prior response
presented by the researcher when faced with a specific problem.

The hypothesis is a possible, approximate explanation given by the researcher

before starting the execution of the project. Like the research problem, the
hypothesis does not come out of nowhere, it links the known with the unknown, it
19 Lara Sánchez Leoncio, Op. Cit. , p. 129

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relates previous knowledge to the possible conclusions that are obtained from it.
Ultimately it drives the progress of research and leads to new results. It is worth
noting that one should not fear that the initial or working hypotheses will be refuted.

Now, the role of the hypothesis can only be perceived in the final result of the work,
it will be the one that validates or not such assumptions, and that is what the
investigative work is about. In other words, until the completion of the investigation it
will not be possible to corroborate or invalidate one or more hypotheses.

Continuing with the previous example we could formulate the following hypothesis:
The pro-homine principle is an interpretative principle of the law that must be
applied both in relationships between individuals and between individuals and
the State, in the national and international context, it is in force and must be
disclosed so that it can be used by both men and women. lawyers and legal
operators.

1.4 Research objectives

The objectives are the purposes related to the knowledge that is intended to be
acquired through the research and must be possible to achieve. Impossible or
unattainable goals should not be proposed as objectives.

The objectives must be formulated based on the depth of knowledge and analysis,
the technical, methodological and human resources available, and the time available
to carry out the research.

These objectives arise directly from the problem statement and must be closely
coherent with it, within which there is not only a thematic field but also an implicit or
explicit theoretical-methodological approach.
The objectives establish the goals that are believed to be possible to achieve at the
end of the research, in terms of solving the problem posed. The objectives are
formulated by defining a general objective, and several specific ones, which
constitute the breakdown of the general objective.

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1.4.1 The general objective arises from the formulation of the problem, therefore,
methodologically it is suggested to take the scientific question and transform it into a
statement headed by an infinitive verb, for example: investigate, analyze, make
known, establish, determine, question, understand, etc. For example:

Determine the validity of the pro homine principle, its characteristics,

projections and applicability in the national and international legal order.

Among the functions of the objectives are:

■ Define the research topic

■ Guide the general research process
■ Organize material selection
■ Determine the research strategy that should be used 20

1.4.2 To establish and write the SPECIFIC OBJECTIVES , it is advisable to carry

out an exercise, which consists of a procedure for formulating several questions that
allow addressing each of the elements found in the central question with the
purpose of being questioned at the same time, to be able to develop it precisely and
in detail, for example:
What are principles and what relationship do they have with law?
What should be understood by the pro-homine principle?
What are their characteristics?
How does this principle arise and in what historical-philosophical context?
How is the pro-homine principle applied in the legal universe?
Is the application of this principle valid?

These questions will give rise to the specific research objectives, which are written
starting with a VERB in the infinitive, let's see the following example:
Question exercise Specific objectives
What are principles and what Analyze what the principles consist of
relationship do they have with law? and what relationship they have with the
legal universe.

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 What should be understood by the Establish the concept of the beginning
20 principle
The design of the objectives is related to the sources of the investigation, therefore it must be taken into
account at once where the investigation is intended to obtain the information, directly in the law, jurisprudence,
doctrine, etc.
pro-homine ? pro-homine.
What are their characteristics? Determine its characteristics
How does this principle arise and in Investigate the historical-philosophical
what historical-philosophical context? context in which the appearance of this
principle is possible.
How is the pro-homine principle applied Understand the practical application of
in the legal universe? the pro-homine principle in law.
Is the application of this principle valid? Establish the validity of the pro-homine
principle.

It must be kept in mind in the design of the specific objectives that each one will
become a chapter of the final research document, in other words, it will not be in this
document but in another (the final research article) where the objectives are
developed. by chapters, in the research project they are simply stated.

1.5 The Justification of the Research

This point refers to the presentation of arguments that support the relevance of the
chosen research. It is necessary, therefore, to point out the practical problems to
which the study could contribute to solving them or at least provide certain criteria
that guide the understanding of the phenomenon and the planning of action. The
support of the research must be carried out in terms of need and relevance.
Necessary in terms of the absence of other research on the subject, a deduction
that is made once the state of the art has been reviewed, hence the lack of
knowledge of it and the need to be addressed and socialized subsequently; One can
also speak of necessity insofar as the approach that is intended to be carried out
has not been developed to date.

Regarding the relevance of the topic, it can be argued from the urgency that its

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research has for the law, due to innovation; With its development, an aspect of legal
knowledge will be advanced.

In other words, it is to mention what the study is for. A very common mistake is to
mention in this part the justification of the problem, when what is required is the
justification of the research, the contributions it will make.

1.6 Framework
So far, everything related to the research problem has been explained, its
explanation and description in context (problem statement), the objectives to be
achieved have been indicated and the relevance of the research has been justified,
in terms of the contribution it will make. to the academic community. Well, the frame
of reference is part of the title that names the crucial third part of the research
project, since the theoretical components that will guide the research will be
identified, which are necessary since the research constitutes an intellectual effort
that is based on arguments – not value judgments, such as a general opinion –,
these arguments are the chosen theoretical approaches.

Research in the natural sciences is different from that carried out in the social
sciences due to the aim that each one has, while for the former its purpose is to
explain reality through mathematical statements that respond to the problem posed
in quantifiable terms, by choose nature as the unit of analysis; The second seeks to
understand reality in qualifyable terms, in a look at the human being and his
relationship with the environment. Both ways of seeing the world constitute the great
paradigms20 of scientific research: the quantitative and qualitative paradigm.

Now, legal research is part of the paradigm of social sciences, therefore, it seeks to
understand the phenomena that concern law as an object of study, which, as we
stated in previous paragraphs, can be addressed in any of its three aspects.
dimensions: the normative, the axiological and/or the factual.
The reference framework is made up of other elements such as the state of the art,
20 Thomas Khun indicated that these are “(…) universally recognized scientific achievements that, over a period
of time, provide models of problems and solutions to a scientific community.” In The structure of scientific
revolutions , Breviaries, ed. Economic Culture Fund, eighteenth reprint, Mexico, 2002, p.13.

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the theoretical framework, the conceptual framework, the legal framework and the
contextual framework.

1.6.1 The State of the Art

The purpose of all research is the innovation of knowledge, in response to the

fundamental principle of science and technology, the search for knowledge that
contributes to social development.

In this sense, building a state of the art allows for a tracking that informs about the
way in which a certain topic of study has been approached, from what approach,
under the predominance of what disciplines; It is about making a preliminary
investigation about the studies, research that exists on the topic or object of study
or, in another way, what research or publications precede the one that is intended to
be carried out here. For which it is recommended, at the undergraduate level, to
initially carry out a search in the library of the respective University, in which similar
research is identified, if nothing exists, expand the search to monographic works
from other local or national universities. . In any case, the mere fact that a research
similar to the one proposed has not been carried out at the same university, let us
say, justifies to a certain extent the research proposal to be developed, since it is
necessary to address this issue.

In any case, it is not about having a monopoly on a topic, but on the contrary, taking
advantage of the advances that have been made in advance and not making the
mistake of inquiring into aspects that have already been reviewed in their entirety, in
which case It is suggested to expand the analysis aspect; Identify which element
has lacked depth and based on the other investigations carried out, undertake the
development of the investigation. It is worth specifying that the researcher has
several alternatives; he/she can dispute the theories presented, affirm them, refute
them or use others for the analysis of his/her object of study.

It differs from the Theoretical Framework, because the state of the art does not

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identify theories but rather specific research on a given topic. It is also
recommended to carry out a review of the topic in the databases to which the
university is subscribed.

1.6.2 The Theoretical Framework

Theory can be understood as a system of concepts and relationships that help to

understand and interpret the phenomena of the world. These concepts are
developed by academics, by people who, from their area of interest –philosophy,
law, history, politics– They tried, from empirical knowledge21 , analyze22 reality, to
which is added the choice of a method23 to achieve it.

Therefore, for all scientific research, including legal research, theory is needed to
illuminate the object of research, since without it, the question posed would surely
be answered with value judgments, without foundation. However, it must be clarified
that the theories used as an instrument to reveal the object of research are not
necessarily universal laws, a claim of the “hard” or natural sciences, on the contrary,
they are views, approaches, paradigms that at a certain historical moment They
were useful for an academic community in the attempt to understand social
phenomena.

However, the question at this point could be: what is theory for? We consider that
Habermas (1978) comes a little closer to resolving this question by referring to the
interest that motivates the researcher in social sciences, the technical interest,
practical interest and, finally, emancipatory interest, in turn each of these interests
correspond to three paradigms: the empirical-analytical, the historical-hermeneutical
and the emancipatory.

Let's look at this more closely; The empirical-analytical paradigm aims to predict
what is going to happen in order to try to control it; This approach is strongly
21 It is understood as a direct approach to the sensible world.
22 It refers to a methodological category that attempts to disaggregate the whole, the systemic unit into simple
parts, to subsequently present a synthesis that responds to the reconstruction of the object of analysis from the
perspective of the researcher (a)
23 The choice and relevance of the method will be expanded later.

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influenced by the aim of quantitative research. The main motivation will be the
selection and management of certain variables aimed at achieving specific results.

The hermeneutical historical interest focuses its view from praxis, identifies that
social reality is in continuous change and that to understand it it is necessary to
carry out a historical review of each context. It is a practical interest because its
purpose is to make sense of the phenomenon, to understand what it means for a
certain human group under individual and social understandings.

Finally, it presents the emancipatory approach, as its name indicates, it aims for
knowledge to be useful in changing social structures, in making a concrete
contribution of research aimed at directly transforming society. Therefore, this
interest guides the activity of knowledge towards social and political action,
conceiving research and the generation of knowledge as a means to transform
social conditions that conceal phenomena of exploitation and domination.24

In the field of social sciences we will find, more than great theories 25 , theoretical
tendencies, for this reason we speak of theoretical approaches, since the category
of analysis – the human being and his environment – is quite complex due to its
constant dynamism, therefore, it is supremely pretentious, if not impossible, to
cause certain phenomena in theories, as fixed outlines, immutable pillars of
knowledge.

In this sense, theoretical models or theoretical perspectives are a type of theories

that seek to provide a system of interpretation to the world. They have a scope
equivalent to that of grand theories, but with more restricted fields of application, or
with less strong relationships between concepts. Theoretical models are generally
associated with a discipline, examples include functionalism or symbolic
interactionism in sociology, structuralism in linguistics, behaviorism or
psychodynamic theory in psychology, post-structuralism in history; critical theory in
24 Cf. Pastrana E., notes from the Seminar on Epistemology and Postmodernity in the Social Sciences, USC,
2006.
25 However, the important attempts to carry out a great theory about society must be recognized, such as: the
theory of Max Weber or Luhman; in the field of psychoanalysis to Freud when analyzing the unconscious and its
relationship with the human psyche, or, finally, Marx and his theory on power and accumulation, among others.

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the social sciences, the statist approach in international relations, naturalism in law,
among others.

Ultimately, theory provides a conceptual structure on which to support the various

formulations and concepts present throughout the research process. Whether we
like it or not, behind the research process there is a conceptual framework that
makes it possible to point out, explain, select, order, while allowing the problem to
be integrated within a broader conceptual scope, giving meaning and coherence to
multiple events. It also serves to locate social phenomena in a broader horizon,
leading to theoretical postulates and research related to the topic of study.26

The construction of the Theoretical Framework is perhaps one of the aspects that
can present the greatest difficulty for the researcher in the field of law, even more so
when the theoretical approach that has been had during the degree is very little, it is
quite well known. that the positive paradigm has influenced a legalistic teaching of
this discipline, therefore, it is the knowledge of the norm, rather than the reflection
on its production or social impact, that has prevailed.

Therefore, the confusion of the theoretical framework with the legal framework, well
understood and managed per se by law students, is common.

It must then be understood that the most important function of the theoretical
framework is the opportunity to integrate the theoretical tools that have been
acquired in a discipline or that must be found from the concepts that one has.
Therefore, we must try to link the phenomenon and the problematic situation with
the theories of the legal discipline in harmony with other knowledge in the social
sciences.

Then, the theoretical framework is the set of theoretical elements, called theoretical
propositions, theories, assumptions or concepts related to the phenomenon and the
problematic situation to be studied, which must be presented in an orderly manner.

26 Cf. Pastrana E. notes from the Seminar on Epistemology and Postmodernity in the Social Sciences, USC,
2006.

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Intrinsic to its construction is the historical component, this shows the development
or theoretical evolution of the topic in delimited periods of time.

In the construction of the theoretical framework there is no single or specific formula,

it must be taken into account that it is the search for a theoretical orientation that
allows the research to be guided, consequently, a research problem can be
analyzed in light of several theoretical approaches. , in such a way that the
conclusions of the investigation will be different.

For example, in the analysis of a research problem in which we want to identify the
projection of a specific right, such as the international right to development, within
the conceptual category of human rights and its link to third generation or third
generation rights. the international community.

The conclusions of the research will be different if for the analysis of this example
problem, it is approached from the perspective of international financial institutions
such as the World Bank or the International Monetary Fund, which are based on the
theory of modernization , which seeks in general terms the constitution of a
Minimal State, little bureaucratized and highly privatized; or in the case that the
statist approach is used, through which the State is investigated as a unit of
analysis, thereby leaving out, in the globalized world, the new international actors
such as International Organizations, Financial Institutions International and social
movements from different latitudes, which influence the determination of the New
International Economic Order.

On the other hand, if the theory of dependency is chosen, represented in

institutions such as ECLAC, the response to the research problem will be in neo-
Marxist terms that present a totally different world vision and contrary to the
theoretical approaches exemplified previously, in this same line of thought we can
locate critical theory , through which we seek to identify those historical chains that
are revealed or hidden but that seek action, that is, debate, evaluation and
resignification of them to present other concepts and other views aimed at the

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change of structures, political advocacy proposals, for example.

Research Problem

In the choice of a theoretical approach, the subjectivity of the researcher takes

precedence, therefore, ultimately it will be from the researcher's vision that the
theoretical framework is configured that acts as a guiding principle of the
investigation, through its concepts, of the reading of the world carried out by said
paradigmatic structure.

The science of law uses legal doctrine, legal theory, legal sociology and legal
philosophy, which are important sources of the theory and knowledge of law, as well
as other social sciences such as sociology, history , anthropology, psychology,
philosophy, among others; At least two paradigms can be identified for law,
remember that the paradigm can be understood as a set of knowledge and beliefs
that form a vision of the world (worldview), around a hegemonic theory in a certain
historical period.

In this sense we have a theoretical research paradigm and a socio-legal research

paradigm.27 , let's see:

1.6.1.1 Paradigms of Theoretical Research, we have ius naturalism , ius

positivism , realism, legal trialism and legal pluralism.

1.6.1.1.1 Ius Naturalism: addresses the problem of whether or not the norm

27 This point is part of the memories of the Research Methodology Seminar, Postgraduate Law, Universidad
Pontificia Bolivariana de Medellín, as a module within the Master's Degree in Private Law.

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 corresponds to the values or purposes. It confronts the ambition of the
law with its duty to be a just norm. It can be said that it is part of the
axiological dimension of law.
The source system for this case is given by the law, values or
principles of law. Problems of interest are the fair standard; material
validity from the beginning and legitimacy. The type of study is the
finalist and critic of the law.
It also refers to suprastate values, those superior values that are
universally valid.

1.6.1.1.2 Ius Positivism: corresponds to the legalistic vision of law (Kelsen),

sees law as a mechanism of social control or regulation, addresses the
problem of the formal and material validity of the norm. It questions the
law as a valid legal norm, however, there is no problematization, only
conceptualization.
The source will be the valid law that regulates an institution; The
method used will be the literal, historical, systematic, finalist method.
The problems with this approach may be formal validity, validity, scope
of the rules, gaps, contradictions. The type of study is the uncritical
description and systematization of the law.

1.6.1.1.3 Realism: is the analysis of the law versus its application by the legal
operator. It is the problem of compliance or ignorance of the legal
norm, it is also called the right of action or living right.
The Source will be jurisprudence, judicial rulings, the object of study is
the effective standard applied by judges. Study of judicial precedent.

1.6.1.1.4 Legal trialism: in which the norm, value and reality are combined. The
possible problems that may arise in this sense are: the fair but invalid
norm (principle of non-reciprocity in international trade treaties); the
valid but unfair rule (ignorance of paying the night surcharge as
overtime); the valid but ineffective norm (presumption of innocence,

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 judicial guarantees); effective but invalid norm (parastatal justice); fair
but ineffective norm (right to decent housing, right to work); effective
but unfair rule (sanction for late payment of credit, registration in
datacredito, judicial records after serving the sentence).

1.6.1.2 Paradigms of Socio-legal Research, legal sociology and critical schools

of law.
1.6.1.2.1 Legal Sociology: estimates the effectiveness of law in society.
Problems about legal technique, the implementation of the law are
addressed; understands law as an instrument for the development and
solution of social problems. The system of sources in this research
prevails field work, therefore it will be the interview, the survey,
supported by statistics, addressing the law in its reality. The method to
be used can be qualitative and/or quantitative. The problems of
interest may be the difference between written law and law in action;
proposals for the development and effectiveness of law.

1.6.1.2.2 Critical School of Law, assumes legal science as an instrument used

as a symbol for the legitimation of power or domination. Analyzes law
as an ideological discourse in the light of other disciplines, politics,
philosophy, morality, history, economics. The type of study carried out
is critical of the political and ideological nature of law. The problems it
addresses may be about the symbolic effectiveness of the norm, the
rationality of the judge, gender studies, racial studies, legal pluralism.

1.6.2 Legal framework

At this point, the national and international standards used in the construction of the
research project should be indicated, as well as a list of the jurisprudence, if any,
used. It is not necessary to transcribe the complete regulations or jurisprudence,
they should only be related.

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1.6.3 Conceptual framework

This element of the reference framework complements the theoretical framework

since it is the relationship of concepts developed by a specific discipline. It is made
up of the definitions of some concepts that allow you to locate your research in a
specific field, however it does not consist of only a list of definitions or glossary, it is
assumed that these are part of a theoretical framework, that is, of a framework that
unites them. , that establishes relationships. The conceptual framework will allow the
key words of the research to be identified.

1.6.4 Contextual Framework

It is the spatio-temporal delimitation of the research and can be understood in two

senses depending on the research method chosen; If theoretical, the scope or
context is given by the specific areas of knowledge in which the research is carried
out. If it is a research that requires field work due to its objectives, the contextual
framework will be the physical space in which the research is carried out, a
community, a court, a commune, etc. Likewise, the time in which this is carried out
must be indicated.

1.7 Methodological Design

The methodological design is the last crucial part of the research project, since
through this step the way in which the specific objectives of the research will be
achieved is explained, it can be understood as “ （ … ） the set of scientific rules
suitable for identifying and understand the vast field of law”28 it's divided in:

1.7.1 Kind of investigation

Could be:
1.7.1.1 Basic, in general terms, is the creation of new knowledge; For Professor
Lara Sánchez (1991) it will be basic or pure when primacy is given to the
28 Lara Sánchez Leoncio, op. cit. p. 43.

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 systematization of legal concepts (legal norms, jurisprudence and
doctrine), generally a theoretical methodological orientation is used and
the method would be theoretical. -deductive.
1.7.1.2 Applied, in the abstract it is the development for the solution of practical
problems, “（…） if the orientation is towards the examination of the data
of legal experience, also in this we find ourselves in the order of the
systematic construction of concepts, even when there is an empirical
reality to analyze （…）”29 In the same way, it will be said that it is applied
when it relates law with other areas of knowledge as well as with social,
political, philosophical phenomena, etc., it may then be called socio-legal,
philosophical ius , political ius , for example.

1.7.2 Type of study30

1.7.2.1 Historical-legal : refers to the historical monitoring of a legal institution

(e.g., the family, the contract, patents, biosafety, the state).
1.7.2.2 Comparative-legal : tries to establish the similarities and/or differences
between legal institutions or legal systems (e.g., similarities between
German criminal law and Venezuelan criminal law).
1.7.2.3 Legal-descriptive : it consists of applying the method “purely”
analytical approach to a legal topic, that is, it consists of breaking it down
into as many parts as possible. This implies that the topic must be, unless
another purpose is pursued, very well defined (e.g., analysis of the
requirements for contracting marriage).
1.7.2.4 Legal-exploratory : it is about opening the way for the realization of
subsequent investigations (e.g., general aspects of copyright).
1.7.2.5 Legal-projective : it consists of making a kind of prediction about
the future of some legal aspect (e.g., maintaining that Criminal Law in the
near future will become the responsibility of supranational entities).
1.7.2.6 Legal-propositive : it is characterized because it evaluates failures of the

29 Idem. p. 43.
30 This point taken from Dávila, Johnny Antonio, Guidelines for a legal investigation ,
www.ventanalegal.com/estudiantado website consulted in March 2007.

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 systems or rules, in order to propose or provide possible solutions.

1.7.3 Research Methods

The method can be understood as a path to knowledge or a set of scientific
research procedures. In research there is no single, universal and incontrovertible
32
method. It is also necessary to specify that the methods are correlated with a
historical moment, in such a way that the schools of law must be taken into account
to understand the way in which the problem of legal knowledge has been
approached. Thus we have the historical school, the dogmatic school, that of legal
realism, that of jurisprudence and
32
Pastrana, Eduardo, Notes taken from the Seminar on Epistemology and Postmodernity in the Social Sciences
, USC, 2006.

sociological31 . For their part, the methods used are inductive, deductive, analysis or
synthesis.

1.7.3.1 Deductive Method “Once in contact with the particular cases and with
those data that allow us to locate a search context and formulate an
unknown, a general and abstract representation of the facts is directly put
forward, and tentatively, such that it is possible to make progressive
concretions until reaching singular cases. While in induction knowledge is
achieved through an increasing process of generalization, starting from
cases or samples of cases, in deduction the generalization process is
decreasing, starting from bold assumptions (Popper, 1962), of great
32
breadth, abstraction and generality, down to specific facts.” In other
words, through this method a logical inference is made that follows from
the generalization to the particular.

1.7.3.2 Inductive Method “If singular cases are considered as classes of things
or facts, related to each other by virtue of certain common properties, an
alternative to represent them is to examine all or a significant part of them
to determine regularities, explanations of them and generalized schemes
31 Cf. Lara Sánchez Leoncio, op. cit. p. 23.
32 Padrón Guillén, José, Paradigms of Interpretation in Social Sciences, Caracas, 1992,
www.padron.entretemas.com , page consulted August 2007.

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 that over time are readjusted or replaced according to what results from
their confrontations with reality. In short, knowledge obtained inductively is
that which is based on progressive generalizations based on singular
cases.” 33 In this case, unlike the previous one, we start from the particular
to specify, achieve, propose or know the general.
1.7.3.3 The analytical and synthesis method is the fragmentation of the whole
into its elementary parts with the purpose of generating new knowledge.
Through this method, the structure of the investigated object can be
known by being decomposed into all its constituent elements.
1.7.3.4 Hermeneutic Method refers to the interpretation of law, it can be
summarized with the exegetical, systematic and sociological method. The
application of this method is aimed at discovering, finding contradictions,
deficiencies, omissions between the rules or the legal system; It is
characterized by the analysis based on the inductive route.
It is applied in jurisprudence, understood as the doctrine of judges,
developed based on the solution of specific cases.
In doctrine, understood as the technical studies and theories of specialists
in the different branches of law.

1.7.4 The sources

Research sources are understood as the support that will be consulted in
order to respond to the specific objectives of the research. These can be
primary or secondary and depend on the type of research being carried out.

Therefore, if it is basic research and specifically for the field of law, the
primary sources will be the law or international instruments and
jurisprudence; As secondary sources, doctrine or specialized texts will be
consulted. It is worth specifying that the original author of a theory should be
preferred to others who, based on the initial theoretical assumptions, make
approximations to the main authors, in other words. , it is preferable to
directly interpret the author of a theory, to confront the text once and for all,

33 Idem.

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 than to read what others have developed based on their impressions on the
subject.

On the contrary, if it is applied research, the primary sources of the research

will be the social fact, for this purpose instruments will be designed that allow
quantifying the opinion or perception of a community, for example, the
survey, the interview, the observation, among others. In this case, the
theoretical support will be understood as secondary sources since what
interests the researcher is to confront theory with reality.

Now, if the research is transdisciplinary, that is, if the field of legal research
is opened to confront it with other knowledge such as statistics, psychology,
sociology, among others, it will be indicated that the sources primary in this
case, it will be the law (law, jurisprudence, doctrine) and as a secondary
source, we must locate the discipline that is linked to the research.

1.7.5 Information collection techniques and instruments

For Basic research, there is initially a bibliographic review , the selection of
information , the analysis of information , and the systematization of
information . Each of these activities must be planned through the research
schedule, with the purpose of building the research article document; During
this preparation, the relevant aspects that will allow the construction of the
table of contents must be extracted.

Another very important aspect in choosing research techniques is that they

will depend on the specific objectives that are intended to be achieved in total
correlation.

When the research is applied and the researcher decides that he/she needs
instruments to quantify his/her field work, he/she may use the survey , for
example; For this purpose, you must define a population and extract a
representative sample from it, which can be 60%. Let's look at an example.

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The proposed investigation aims to determine whether legal operators
take into account both the instruments and international jurisprudence
to illuminate their reasoning when issuing a ruling . In this case, the first
thing to do is delimit the population , who makes up the population? For
example, the municipal criminal judges of the municipality of Santiago de Cali
will be taken.

In this case, you must estimate how many there are; This figure allows us to
show the total population according to our needs. To the previous figure we
apply 60% and this will give us, through a rule of three , the number of legal
operators that we need to survey with the objective that our sample have a
secure and representative livelihood. In such a way, from the results of the
survey it can be easily deduced what percentage of municipal criminal judges
do not apply international regulations and jurisprudence or, on the contrary,
they do apply it.

Regarding the preparation of the instrument, it is necessary to take into

account a moment in the schedule for its preparation, another moment for the
application and finally the time that will be allocated to the tabulation of the
information. As for the questions in the questionnaire, they must be closed,
that is, the respondent answers affirmatively or negatively, without open
questions that allow subjectivity, because in these cases it is too complicated
to quantify the information.

Another technique that can be used is the interview , this instrument allows
us to consult an expert on a specific topic. In this case, a questionnaire must
also be developed, however the questions may be open, that is, allowing
the /the interviewee responds freely; The interview offers us the possibility of
analyzing the interviewee's responses in qualitative and not necessarily
quantitative terms (interview).
It is worth noting that the previous research techniques, the survey and the
interview, are typical of the type of research applied under the socio-legal

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 paradigm.

1.8 The investigation schedule

Both the schedule and the budget refer to the administrative aspects of the
research; We have seen how scientific inquiry is characterized by the planning of
the activities that will be developed with the purpose of achieving new knowledge
about the subject but that it has been necessary, to reach it, to follow a series of
steps, which in a way organized allow us to conclude the objectives of the
investigation.

Therefore, when preparing the research schedule, the research techniques that
will be used must be taken into account. Likewise, the moment from which the
research will begin to be developed must be indicated, once the research project is
approved. It is suggested the use of a table to facilitate its preparation in which the
time that will be dedicated to said research is determined, six months or a year.

Date Month 1 Month 2 Month 3 Month 4 Month 5 Month 6

Activity
Revision XX
Bibliographic
Selection of x

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 Information
Analysis of x XX
Information
Systematization XX
of the
Information
Preparation of x
the first research
advance

Time for XX
corrections
Preparation of x
the second
advance of
investigation
Time for XX
corrections
Preparation of XX
the third research
advance

Time for XX
corrections
Final research XX XX
article
presentation

1.9 Budget
The second of the administrative aspects of the research project is the budget, this
is an advance calculation that the researcher must make in order to execute their
research; Aspects such as the acquisition of bibliographic material must be taken

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into account; subscription to scientific journals or databases; travel, among other
expenses that the researcher may need during the time he or she will dedicate to
the research.

This aspect is very important, since in many cases the participation of another entity
that co-finances or finances the research is required and a description and planning
for the approval of resources is required.

Below we present a table as a suggestion.

SOURCES TOTAL
ITEMS University

Others
1. STAFF

Director

Co-investigators

Seedbeds

SUBTOTAL

2. EXTERNAL ADVISOR FEES

SUBTOTAL

3. TEAMS

Equipment

Software

SUBTOTAL

4. MATERIALS AND SUPPLIES

Stationery

Internet

Photocopies

SUBTOTAL

5. TRAVEL

Tickets

Per diem

Accommodation

Registrations

SUBTOTAL

6. FIELD EXITS

Airline tickets

Per diem

Accommodation

Stationery
land passages

SUBTOTAL

7. PEER REVIEW

SUBTOTAL

8. BIBLIOGRAPHY

Books

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 Magazine Subscriptions

Subscriptions
Databases

SUBTOTAL

9. PUBLICATIONS

SUBTOTAL

10. TECHNICAL SERVICES

Fee

General services

SUBTOTAL

GRAND TOTAL (sum of subtotals)

1.10 Tentative Table of Contents

A preliminary document or guide such as the research project requires a provisional

projection of the content of the research product that is intended to be achieved with
the development of the research work. This table of contents or index in which it is
projected how the topic under study is intended to be developed, must initially begin
with an introduction in which the document is presented and its origin is explained,
subsequently a chapter must be dedicated to the aspects generalities of the project,
this item presents a summary of the relevant aspects of the project, such as, for
example, what was the research question posed, what were the general and specific
objectives, what was the theoretical framework chosen and, finally, what was the
methodological design used.

Subsequently, the body of the work begins, for this purpose each of the specific
proposed objectives must be reviewed and begin to dismantle them into subtitles to
structure the table of contents. In such a way, each specific objective will correspond
to a chapter of document two, that is, of the research product: the research article or
final research report. After covering the chapters, a final point should be dedicated
to the general conclusions of the research.

1.11 Bibliography
The last point of the research project is the list of the bibliography consulted to carry
out the research project, it must be divided by sources, initially the doctrine used
will be presented under a title, it will begin by citing the authors in alphabetical order
starting with the surname in capital letters , separating everything by commas; The

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name will continue, in title type letters, then the title of the book or essay, the edition,
the publisher, the city, the year and the page(s).

The second source will be the regulations used, first the national regulations will
be indicated, then the international regulations, and lastly the jurisprudence
consulted, indicating the corporation, sentence number and the reporting magistrate.

Later, Internet queries will be indicated. In this case, you must begin by indicating
the information of the author or institution that presents the document consulted, title
of the document or article, date of the document, if available, then the Internet page
and then the date. of document consultation, that is, the month and year in which
the researcher reviewed the web page.

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