Legal Research at Postgraduate Level Essay

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Discuss and critically assess the benefits and disadvantages of at least two different research methodologies as tools for conducting independent legal research at postgraduate level

Kvale has described research methods as ‘the way to the goal’ (1996a: 278). A hypothesis, once devised, needs to be justified after which it is necessary to establish exactly what objectives are to be used in order to attain the required goal, the answer to the research question. Epistemology clarifies what facts can be elicited from the information and establishes its scope and validity. The information can be obtained through either primary or secondary data collection and, either method can be elicited through either the quantitative or qualitative route.

Epistemology focuses on how the information obtained relates to the perception of the surrounding world and its relevance to the research being undertaken. Positivist epistemology suggests a straightforward interpretation of phenomena, with distinct and accurate interpretations of information being investigated. This particular philosophy has also been described as a ‘correspondence theory of truth’ , relating to:

“the external world itself determines absolutely the one and only correct view that can be taken of it, independent of the process or circumstances of viewing” .

The focus of this is unbiased and impartial resulting in an objective outcome. This view fails to acknowledge the unknown variables and the many limitations associated with modern research, whilst a concept veering too far in the opposite direction would create a relativist stance. For effective legal research it is necessary to effect a balance between critical realism and social constructionism .

In order to critically assess the benefits or disadvantages of research methodologies as tools for independent legal research these factors must be taken into account as legal research “…is above all a matter of science…” . However, according to Lord Devlin, the law also involves “much illogicality” . For this reason it was decided that the two research methodologies this essay would focus on would take into account the disparity between the Quantitative and the Qualitative Methodologies, firstly investigating the scientific method and then discussing the comparative model in terms of socio-legal research, the phenomenological model and lastly the discourse analysis model, all of which could be encompassed by the comparative model at some point in a research evaluation.

The context of this essay is establishing research methodologies as tools for independent legal research. Legal research, of necessity, involves the relationship between legal rules and the society they serve, establishing criteria to reveal the values important to that society. However, the black letter methodology relates specifically to the rule of law without taking account of any perspective to which this discipline might relate, described as “a type of ‘formalism’ that includes the following aspects, claims and assumptions. These are available to legal researchers as a guide for the conduct of their research and the analysis of their results to the point where it would be possible to use legal formalism almost as a recipe for cooking up a law dissertation” , an ideal base for incorporating with the scientific method to collect and evaluate data.

Scientific Method

“Scientific research consists of setting up situations in which observable activity will be determined in a clear way by a small number of variables that can be systematically manipulated”

The essence, then, of the scientific method is observation and measurement an adherence to the universal laws of behaviour, the “very paradigm of what it means to think and be intelligent” . The intention of positivist empiricism is to maintain the universal tenets of science by providing hypotheses to explain this basic functioning. The hypotheses could be either confirmed or refuted accordingly through experimentation from which a set of defined results could be quantified. This method is, of necessity, considered to be an objective methodology with a clearly defined hypothesis which is tested dispassionately and the results obtained through measurement. These results are then re-tested to ensure validity, after which an evaluation of the data obtained either proves or refutes the hypothesis.

Inherent in this concept is the universality of rational and logical laws of behaviour which need to be objectively categorised through judicious observation, described as a “mathematico-logical paradigm” . The concept associated with a scientific method is not, however, necessarily the most ideal way to undertake independent legal research, illustrated in the Soft Systems Methodology which attempted to incorporate indistinct adumbrate problems into a research paradigm and achieve a result . This revealed the ethos of the scientific method was completely unsuitable for much of the research being undertaken in social sciences, as revealed in the Hawthorne Studies , the paradigm of which justifies the qualitative approach taken by the social sciences . Far more appropriate for the disparate research often found within legal research is the association between sociology and law, the social significance of which was realised through an analysis of its conceptual structures, being both ‘prescriptive and technical’ and “concerned with the whole range of significant forms of social relationships” .

Qualitative Paradigms
Qualitative data needs to be analysed in order to evaluate the results in much the same way that quantitative data does. One of the more efficient methods now available are computer software programmes. One of the first qualitative researchers to acknowledge the value of computer-aided analysis was Methlie in the 1980s who made a distinction between ‘infological’ and ‘datalogical’ approaches. A major study during the 1990s, financed by the DTI and the ESRC, found that the emphasis was still on technical factors rather than on organisational factors and the development process. Whilst this study was IT based the findings could still be acknowledged as relevant in terms of utilising computer software for legal research: many software programmes still focus on the quantitative angle rather than a more contemporary inclusive approach required for qualitative analysis.

“Data analysis is the process of bringing order, structure and meaning to the mass of collected data. It is a messy, ambiguous, time-consuming, creative, and fascinating process. It does not proceed in a linear fashion; it is not neat. Qualitative data analysis is a search for general statements about relationships among categories of data” .

Socio-Legal Method
Socio-legal research method does not only correlate law with those social aspects surrounding it but, due to the incorporation of those disparate social situations, it inevitably leads the research into a position where comparative analysis becomes imperative: for instance, the social aspects of law may be compared to the socio-political facet and evaluated against the rule of law, an argument supported by Kahn-Freund who suggested that these characteristics feature “the background against which that law has developed”. Furthermore, Kahn-Freund states that “a meaningful comparative analysis must consider the ‘power-structure’ which has influence and formed the law” or, to re-phrase this concept, the rule of law cannot exist in a vacuum but is directly incorporated into the social, political and economic ethos of surrounding society. Dworkin takes this concept a step further, focusing on the interpretation of law which is revealed in ‘cultural conversation’

Socio-legal research has been described as embracing library-focused, empirical study involving grounded theory. It also acknowledges the policy making process and correlates a multi-faceted approach to legal phenomena involving an array of humanity based disciplines, with major contributors being the development of social policy, with sociology and economics together with other situations . The outcome of this versatile approach to legal research reveals a theoretical empiricism which relates a disparity of policy-orientated approaches covering a huge range of situations from affirmative action for minority groups to miscarriages of justices, an example of which can be illustrated involving Defrenne v. SA Belge de Navigation Aerienne [1976] ECR 455 which demonstrates the significance of EC law in attempting to refute concepts of anti-discrimination measures being excessively costly or seeking to impose inequity upon non-minorities.

This single example portrays how many other disciplines could become involved in socio-legal research into discrimination amongst minority groups, whilst Horwitz suggests this substantive inequity ‘creates a consciousness that radically separates law from politics, means from ends, processes from outcomes’. The manner in which socio-legal research is carried out contributes towards both its strengths and its weaknesses. Statistical information is acquired through quantitative use of questionnaires or surveys which can document relationships between victims of criminal offences distinguishing between both social class and gender, for example.

Qualitative research reveals attempts at understanding the ethos behind these categorisations through the use of either structured or semi-structured interview techniques and participant observation such as the procedures incorporated in the Lewin Model during the 1940s. Lewin referred to this method as Action Research in which the researcher became actively involved with the subjects of the study, effectively reducing the Hawthorne effect. In the UK the Tavistock Institute was also developing methods similar to Kurt Lewin. The result showed:

“organisations were able to use research on themselves to guide action and change, and social scientists were able to study that process to derive new knowledge that could be used elsewhere” .

Phenomenological Approach
Augmenting this socio-legal model, whose major focus is library research, is the effect phenomenological, or experiential approach, or studying the phenomena as it presents itself revealing the importance of ‘law in action’. One example of this would be the effects of law enforcement on various sectors of the community such as the Communities’ First Initiative involving the National Assembly for Wales, Police Forces, Health Authorities, Local Authorities and the voluntary sector which, as the result of a study into deprived communities in Wales, reported by one local newspaper:

“South Wales Police is committed to an initiative that will allow for a dedicated team of five officers per Division. They will focus on an identified disadvantaged community within each division and police the needs of that area as directed by the community” .

The particular relevance of this example develops the concept of Goldstein’s Model of Policing by relating to a need being identified for Community Police Officers in deprived communities and through phenomenological research introduces the concept of Problem Orientated Partnerships through which “the source of problems is dealt with, and recurrent incidents and the overall volume of calls for police service reduced” . The Police Research Group continued to evaluate the value of the POP approach with the result that POP was seen as an additional burden on a Police Officers time and resources.

The above example is an excellent illustration of the definition given by Spiegelberg in his definition:

“the direct investigation and description of phenomena as consciously experienced, without theories about their causal explanation and as free as possible from unexamined preconceptions and presuppositions” .

Durkheim was also renowned for phenomenological research involving the prevalence of suicide statistics that had been officially recorded in a variety of countries. His analysis of these figures revealed variables which established those in society more prone to committing suicide, one of his results revealing lower statistics amongst Catholics than amongst Protestants .

Husserl , a 19th century philosopher from Moravia , was known to have pioneered the phenomenological model as an acceptable methodology in terms of philosophy, ‘focusing on eidetic analysis of intensionality to yield apodictic (necessary) truths’ . This method has achieved a widespread acceptability when undertaking legal research , reiterating much in terms of the socio-legal aspect of legal research covering many diversities such as the example given earlier relating to Problem Orientated Partnerships in Community Policing and evidence from coroners’ courts such as that undertaken by Durkheim who took the information supplied by these statistics and, through focussing on the texts rather than specifically on the statistics, was able to elicit additional information to that originally supplied through official records.

Polkinghorne describes a methodology as “…examination of the possible plans to be carried out, the journeys to be undertaken [in research] so that understanding can be obtained” . These methods, therefore, are really dependent on exactly what it is that the researcher is hoping to discover. All the various methodologies have benefits and disadvantages but these are not necessarily in the execution of the research, but rather in adapting the wrong methodology in an attempt to discover something that this methodology is not capable of reproducing.

Legal research covers two basic concepts. The first illustrates law as it is, a scientific basic of facts through which research can establish quantitative data to quantify specific information. The second is far more detailed and involves a diversity of subjects that entail how society functions and what position each individual occupies within that societal space. In order to obtain data from this category it is necessary to adopt one of the qualitative methodologies which, again, need to be adapted according to what type of evaluation the researcher is hoping to undertake. Each methodology has its inherent advantages and disadvantages, some inadvertent through mis-application, but most shortcomings are due to their particular limitations within themselves, especially in terms of qualitative research which relates directly to people – one of the biggest variables in any research programme.

The most reliable and consistent methodology in legal research would always be the scientific method, either in its own right or combined with the black letter model. The advantages of the scientific model lie within its adherence to the steadfast laws of physics and the limited number of variables. It is possible to obtain accurate statistics based on a mathematical analysis and manipulation of verifiable figures in order to arrive at a dependable end result. However, if the expected results fail to occur then clearly another methodology is required to establish the reason. The scientific model is bound by its need for reliability and validity. Similarly, the black letter model involves research into legal rules and statute, but is again limited to validity in terms of investigation of law as it is without any surrounding influences accounting for the research results. The researcher needs to be clear at the outset as to what the objective of the research is intended to be and what results need to be achieved.

The evolving potential of law elaborates on the important elements of history, sociology, politics and economics that depict law as a subsisting manifestation, endeavouring to justify the history of law through the precepts of ‘sociological jurisprudence and the sociology of law’ . Sociology and criminal justice policy are both inherent in providing an explanation of the contention law endorses within contemporary society, with speculative significance clarifying the future of British legislation. Undertaking research that involves this whole perspective needs to be evaluated in a far more liberal manner than could be obtained through quantitative methodology.

Cotterrell believes that law is assumed to be socially significant, and that sociology of law provides an analysis of law’s conceptual structures. To fully reflect this the socio-legal methodology or the phenomenological models would be more appropriate, each exhibiting benefits and advantages to being used for this kind of research whilst, in some circumstances certain limitations detract one or another from being an appropriate choice. Focusing especially on the socio-legal model provides the sociological movement in law as “taking as its shared object of enquiry the ‘law-society relationship’. This relationship between law and society he explains as being fundamental to the concept of social-legal studies . Central to its study, Hunt believes, are the American realists [citing Pound especially] , but he considers ‘Weber’s contribution…a fruitful point of reference’, explaining that Weber places the law-state relationship at the heart of his sociology of law . However, this model is a theoretical-based methodology through which legal theorists’ concepts are portrayed.

Actually putting law into action involves the experiential route of phenomenological methodology. This method focuses on the qualitative theory and applies it to actual real-time situations, enabling this research to record the views and actions of people and the society they belong to and correlate this observation to the law as it is. One of the biggest problems encountered when undertaking phenomenological research is that methods develop and change as the study evolves. The answers obtained from these qualitative observations, however, provide a theoretical basis to for future sociological innovations to evolve, as in the case of Problem Orientated Partnerships which, through socio-legal research identified disadvantaged societies in need of this adaptation of policing. This was then applied in accordance with the experiential model and the potential feedback from this will provide a basis for future research to evolve.

However, in terms of limitations, van Heerden suggests that:
“Phenomenological researchers…expect nothing more of methods that to provide them with an outline or guideline and seek to develop their own plans of study that are appropriate to the phenomenon under investigation”.

The benefits and disadvantages of different research methodologies as tools for conducting independent legal research would appear to relate more to the importance attached to the theoretical stance and relationship of this to the way in which legal research was to be conducted. It should be from consideration of the theoretical basis of an individual piece of research that an appropriate methodology is utilised. Generally, on considering the advantages and disadvantages of each, in most cases a combination between the socio-legal and the experiential approach would be most appropriate as each of these methodologies can be adapted as research develops and changes, responding more effectively to the many unknown variables encountered in legal research when undertaken from a sociological approach.



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Table of Cases

EU Case 43/75: Defrenne v. SA Belge de Navigation Aerienne [1976] ECR 455

Hedley Byrne Heller & Partners [1964] AC 465 at 516 per Devlin, LJ

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