What is Legal Research and Its Key Concepts?

In this article, we will be discussing What is Legal Research and Its Key Concepts.

Legal research is “the process of identifying and 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 the investigation.” So, get ready to dive into legal research with us! It’s like solving a mystery, but instead of finding clues, we uncover how the law shapes our lives.

What Is Research? (And How Is It Different From Legal Research)

Research means studying existing information for one of two purposes: describing it or producing a new idea. Likewise, legal research studies the law to describe it or analyse its effects, enforcement, merits, etc. Legal research is conducted in many settings, e.g. writing research papers, finding the position of law on an issue, e.g. in moots, internships, and law practice, conducting a study about the law in socio-legal projects, etc. Broadly, legal research is conducted in two settings:

1. You could be given a proposition of law and asked to find authorities supporting that proposition. Or, you could be asked to find the answer to a legal question. “Does the shareholder of a company have the right to move any court against the directors’ oppressive activities?” In these settings, you are usually looking for what the law is. Or, you could write a research paper on a purely legal question, the answer to which is not settled. E.g., “Are India’s fake news legislation unconstitutional?” In such settings, you can analyse the existing law and scholarly literature and make an argument. Once again, however, you are answering the same question, i.e., what the law is according to you. We will call this exercise doctrinal research or analytical research.
2. Again, you could decide to write a research paper, but this time on a legal question having a social angle to it. E.g., “Have India’s fake news legislation succeeded in curbing fake news?” This problem can’t be solved merely by asking what the law is. Instead, you have to ask what the law has done. There are several other aspects of the law you could research on. For example, you could ask how the law evolved, how the law is applied, whether the law is just, etc. Such questions ask you to go beyond the purely legal field into other disciplines such as history, sociology, philosophy, etc. Let’s call this empirical research.

Positivism

Remember the subject called ‘jurisprudence’ from law school? Positivists are those who believe in studying facts rather than opinions. They think facts are objective and can be found empirically. Opinions, on the other hand, are subjective and can’t be measured for their truth. Suppose you are reading about the harmful effects of hate speech on marginalised groups in society. Some scholars say hate speech lowers the dignity and social standing (i.e. social perception) of marginalised groups. You decide to investigate this further and frame your hypothesis.

As you tell your positivist friend about your hypothesis, she scolds you and tells you that this research will be useless. According to positivists, things that are not facts—e.g., values and philosophical theories—should not be searched for since they can never be called “true.” Because you can’t measure someone’s dignity, you also can’t measure whether someone’s dignity is lowered. Hence, it is useless to conduct research in the hope of measuring the harm done to dignity. But are there any objective truths? Our ancestors believed that the Earth was at the centre of the universe. They thought this was an objective truth, and we believe it is a laughable idea.

Consider what John Stuart Mill famously said in his book, On Liberty (1859): “[A]ges are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.” Also, think about the opposite question: are there no objective truths? Positivist research could be either doctrinal/analytical or empirical. Consider these examples.

1. Doctrinal/Analytical Positivist Research: The best example is the research work you usually get at your internship or work office. “Research whether our 33-year-old male Hindu client can adopt a 13-year-old Hindu girl.” You’ve been asked to look up the law. Such research is always positivist. There is an objective truth – a fact – that your research aims to find.
2. Empirical Positivist Research: Positivist research could also have a social angle. What % of death penalty cases heard by Justice Pasayat ended with the sentence being upheld? By how much did the number of winding-up proceedings against companies increase after the enactment of the Companies Act amendments of 2013? These questions are not “What is the law?” but aim to find an objective fact. (Note the close connection between numbers and positivism. Are you being positivist if you’re looking for a percentage or numerical value? We will return to this later question in Modules II and III while discussing quantitative research methodologies.)

Interpretivism

This is an anti-positivist position. It claims that the “natural” world differs from the “social” world, so the research methods can’t be the same. While positivism works well in studying the natural world (capable of complicated empirical analysis), it can’t work in the social world, full of intangible and subjective things such as ideas, emotions, perceptions, etc. If the social world is to be studied, we must examine its subjective aspects.

Note that positivism and interpretivism agree, e.g., that dignitary harms are incapable of complicated empirical analysis. However, positivists would conclude that dignitary harms should not be researched, while interpretivists would study their subjectivity with great interest. But how can we study opinions? The following are some thoughts on interpretivism. Scholars say different things, and they needn’t be entirely consistent.

1. To understand what social reality means to a group of people, you must look at it from their perspective. To do this, you must first get rid of your previous biases. Then, you must experience that culture by living with them. In other words, you should find the “internal logic” of the group being studied.
2. There is no such thing as reality. All ‘reality’ is socially constructed, i.e., we think about reality the way we do only because of how we have been conditioned to think about it. E.g., we believe we respect judges, but this ‘respect’ is socially constructed.
3. It is not enough to merely look at reality from the perspective of those people. To understand completely, you must interpret what’s going on from an external perspective. Research is, therefore, an exercise that involves observation and interpretation.

Critical Perspective

If you asked a critical researcher how to conduct research, she would say, “by spotting and analysing existing power structures”. These researchers study social values and structures critically. They believe that existing social structures and values are not neutral; they reflect and reinforce power. For, the idea that women should perform household chores is a product of male chauvinism, and the notion that some people are ‘untouchables’ reflects the power held by the dominant castes.

An interesting parallel to this idea is found in Prof. Upendra Baxi’s book Law and Poverty: Critical Essays (1988). He argues that we should stop using the passive words “poor” and “poverty”. Why? Because they make it sound like people experiencing poverty just happen to be poor, and poverty just happens to exist. These words hide the reality that some people are continuously being made poor by the rest of us. Words that depict this reality more accurately are impoverished (instead of poor) and impoverishment (instead of poverty).

Postmodernism

Key Takeaways from this Module

Broadly, legal research is conducted in two settings:

1. You could be given a proposition of law and asked to find authorities supporting that proposition. Or, you could be asked to find the answer to a legal question. The research you do to find the answer is called doctrinal research. Likewise, you would conduct doctrinal research to write a research paper on a purely legal question, the answer to which is not settled.
2. Again, you could decide to write a research paper, but this time on a legal question having a social angle to it. Such a question can’t be answered merely by asking what the law is. Instead, you must ask what the law has done and learn this, and you must go to the ground and collect data from the people. This is empirical research.

There are five broad theoretical perspectives on legal research:

1. Positivism says that a researcher should only look for facts which can be felt using the senses, i.e., found empirically. Things which are not facts – namely values and philosophical theories – should not be searched for since they are incapable of precise measurement.
2. Interpretivism says that positivism can’t work in the “social” (as opposed to “natural”) world, which is full of intangible and subjective things such as ideas, emotions, perceptions, discrimination, etc. Different schools within interpretivism advocate for different ideas: some say the only way to understand the experiences of a group is to personally experience them, while others say that’s not enough, and the researcher must, from an external perspective, interpret what’s happening. Yet other interpretivists stand against generalising propositions and maintain that propositions are valid only in the contexts they are studied in.
3. Critical theorists say researchers should always be careful to identify and never reinforce existing social power structures.
4. Feminists say that men’s dominant social position distorts their knowledge of the world. Men are unaware of, and hence incapable of understanding, many emotions that women have experienced on account of being oppressed. Therefore, they ordinarily treat only ‘rationality’ and ‘objectivity’ as knowledge. Feminist researchers avoid this – to conduct unbiased research, they treat women’s felt emotions as knowledge worth studying.
5. Postmodernists believe there is no apparent reality at any given point and that research can’t uncover social reality. They believe every research text is a tool someone uses to further their values. Ultimately, they aim to expose this fact, for which they deconstruct texts.

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