Legal Methodology PDF

LEGAL METHODOLOGY Prof. Dr. Elsayed Heikal Part One​: ​The significance of scientific research its importance and methods 2 Part Two 8 Part Three​: ​The researcher...

LEGAL METHODOLOGY Prof. Dr. Elsayed Heikal Part One​: ​The significance of scientific research its importance and methods 2 Part Two 8 Part Three​: ​The researcher 18 Part Four​: ​Elements of scientific research 28 Part Five​: ​How to prepare the plan of the research 42 Part Six​: ​Elements of scientific research 47 Part Seven​: ​How to prepare the plan of the research 61 Part Eight​: ​Capacity of the researcher 63 1  Part One The significance of scientific research its importance and methods The meaning and methods: The meaning is exactly the answer of what scientific research means. Scientific research is simply the way of looking deeply and carefully. The method of thinking and analyzing what you do not have a good answer for. What does the word of research mean? The research is a way of fetching carefully. It means also a way of investigating carefully and deeply in some matters. The see the subsequent question is why does anybody care about investigation? He is caring because he wants to find out the reality, that true 2 foundation for the true roots of anything, both fetching and investigating need good time to spend and support of power if the research is done in science. What is the meaning of science? Science means a group of thoughts and other law like astrology, science of agriculture, and science of law. 3 The methods of scientific research: Research in the legal field means how to think deeply to find Justice, and a real settlement of legal relations. The method of legal research means paying good effort of thinking in special matter to realize and prove justice and settlement of legal relations. The legal research is supporting thinking good effort. The good effort should be done according to scientific methods. The outcome of research and logic results the aim of the legal research is always to realize Justice and good settlements. 4 It is quite noticeable that the needs of community are variable and is always growing. This means that the reciprocity is always under good changes, what was kept out of touch is touchable, acceptable and within hands for dealing – all of this are elements of pricing. Take an example from the value of renting, the period of renting is under changing and is subject of changes. All these kinds of changes are aimed of legal regulations by the House of Parliament. 5 The importance of scientific research Within the legal study, the legal research got big importance. The reason of this importance is divided into four elements as follows: The scientific research leads to reach good results in realizing justice, security, and maintaining good stability in legal relations, this is the target of every legal research. Legal research is realizing the logic development. It can refresh the active memory of human being. It can develop the power of capability of including details of samples which is good analogy. To do 6 research and to reach logic conclusion is quite needed to evaluate the new facts. Through the scientific research human beings may express their private thoughts. They may understand the thoughts of others in a convincing way. According to the scientific research man can obtain two fundamental rights. These two rights are the right to express their own right and to get other information. These two rights are the constitutional rights. 7  Part Two The researcher is the one who is carrying all investigations undertaken in order to clarify new facts and to get additional information. Absolute regulations for the research, they are absolute ones, means that they almost decisive and ultimate regulations. They are controlling his morals. The researcher actually is a very important person in the triangle in the scientific research. It is well known to everybody that if the research is not able to study, who is not capable to produce a good research, is not a good researcher. 8  Many requisites are expected to be found in the morals of the real researcher. It is to say that there where are many qualifications that should be attached with his morals as follows: 9 First, the scientific innocence: To be innocent that means knowing nothing of evil or wrong. It means for the researcher that he must mention all references that he actually studied them without those which he did not study. He should identify every opinion and mention what had been given before. This innocence will not let him face or cause him any blame in future. On the contrary, it will add a scientific value to his good research. If the legal research is related to other researchers which is built upon previous opinion or opinions in the jurisprudence and justice, his duty is to mention them as they are. 10  What is blamed is the study of another opinion when the researcher had mentioned them as his own. It is also blamed when he mentions another opinion but badly just to find a root of criticism. It is just wrong. 11 Second, qualification: The subjectivity of the researcher means the neutrality of the researcher. How it should be his neutrality? He or she should not be in lined to other opinions. He or she should not equalize any other opinion without legal approval. His aim must be to find out the reality of anything. He must introduce other legal opinions truly whatever they are. Subjectivity means not to be objective. He or she must mention the opposite of opinions along with the standing points. The researcher must depend on legal logic, approval and not motive ones. For example, the researcher should not assist any opinion just to please another one without telling good reasoning. For briefing, the researcher himself should be subjective in his criticizing, neutral when 12 backing other opinion and his ultimate end his to find the truth. Third, qualification for the researcher​: Capacity of building a new idea, to build a new idea means he is able to renovate, to create another solution, to bring another analysis. He must be capable to study every part of his research. He must not just be a transmitter of other ideas. He must discuss every idea, every opinion and causality to clarify any obscurity. He must not accept any idea without deep study. He must keep in mind that every system can be changed and nothing is eternal. He shouldn't say “no comment”. 13 Fourth, qualification for a good researcher: Deep reading and wide overlooking He should be fully interested in deep reading. He is also adapted on a wide overlooking. He is keeping good knowledge on other sciences. He must be near of two foreign languages. Knowing about history is not a kind of luxury but the most important. Arabic language can assist the researcher in understanding the article to elaborate his research in an acceptable language and good method. 14 A study of good enough of a foreign language may give the researcher a good richness. 15 Fifth, qualification for the researcher: Patience To be patient means that he is able to endure his study, his research and his analysis. He is able to show endurance of power. The researcher should be patient and in all his steps of research beginning from selecting the subject, collecting his scientific materials, being patient when meeting the juries. 16 Sixth, qualification To be modest and truly in his ethics, he must be modest while talking, observing God in every step what was written. He must believe honestly that the right and wrong is not an absolute matter. He must not tell any of opinion without study or without being sure of its standing points. 17  Part Three The researcher Stipulations of the researcher No doubt that the researcher is a very important element in the elements of a diagonal. The researcher -in fact- is a man of a study. The researcher is not a student. To have a researcher, it costs to fulfill many simulations. The good research should be qualified and capable to finalize the research. Without having these simulations, the researcher loses the certificate of birth. 18 These stipulations are: The scientific trust-ship, subjectivity, capability of innovation, mass of readings and wide overlooking, self-patient, modest and ethical as follows: 19 First of all, scientific ethics: Scientific ethics means the researcher he or she should study for the study to reach the point of variety whatever it is. It means to be away from evil wrong ideas. It means that he or she must mention all references he found and studied. He or she must identify every opinion and mention what he or she had gotten before. This innocence will not let him or her face any blames. On the contrary, it will add to the scientific value of his or her good research. 20 As a matter of fact, the legal research is related by nature to other researchers in social science which are built up on previous opinions in jurisprudence and justice. The most blame study is a study that depends totally on another study of another body while the researcher himself is adding it to his or her own. It is also blamed when mentioning another opinion badly just to criticize wrongly. 21 Secondly, subjectivity of the researcher: To be subjective means to be mute, to be mute means to be silent, without speech, soundless, mutable means liable to change. It means that the research is not related to any side. It means that he is not affiliated to any opinion. It means that he or she is not for any opinion and is not against any opinion in the same time. It means also that he or she must mention the opinion of another writer and the opposite of another along with standing points. The researcher must be subjective, straight-forward, looking forward to the fact and reality. 22 The outcome of his capacity is the research should be subjective in criticizing any opinion and also when he or she supported another opinion without any incline to his or her personality. That is because he is investigating for the true subject. 23 Thirdly, the capacity of the researcher to invent: The capacity of Invention is simply a capacity of the creation of a new solution and a new idea and the creation of new methods of thinking. The capacity of finding new analysis of such a problem, it means that the researcher can find out other points of view. It means that he or she may find out the reason of weakness or of failure or reason of incapacity. 24 It means that the researcher has a capacity to collect other points or view; criticizes what is needed, and supports what is needed to support and build from the details new collection by using the same standing points. More than this, the researcher should be aware and available in every single detail. He or she must be a transporter or a messenger of other people ideas. The outcome of this capacity is the subjectivity of the researcher in his or her criticizing of another opinion. Without mentioning the standing points, he or she must not support any point of view without showing good reasons. 25 Fourth, capacity of the researcher Deep reading and wide overlooking: The researcher must be full of enthusiasm to obtain an academic degree. He or she must be interested in obtaining good knowledge in different sciences. In the same time, he should read and analyze all what is related to his main subject matter. He must feel that he is expected to read all rules and theories which are related to his specialty. He is expected to be a deep reader and wide overlooking in all rules and general theories and his specialty. In addition to that he must know all about principles of other kinds of knowledge which are related to his study. He should command other languages. 26 Fifth, capacity for the researcher: Good patience means to be self-qualified of deep happiness in deep study. The researchers and self-researcher must be self-confident in spending time in deep study. The researcher must have endurance and patience. He or she must be self-patient while searching and analyzing and within the day of arbitration. 27  Part Four Elements of scientific research Scientific research stands on three elements which are: the researcher, the subject of research and the supervisor. This part is concerned with the subject of research, how to select the subject matter out of many subjects? This subject matter is the first range of all rangers. How the researcher imagines that most of subjects are covered? 28 It is so critical when the researcher did not think deeply or when he/she is in harry in selecting his\her subject matter. The reason of this comes when the researcher is satisfied with the lops of subjects without him\herself to go through contents of any general book reference. 29 It would be profitable when he or she read more detailed subjects and when he/she read more detailed subjects and when he\she thinks of what he\she got from deep thinking. So, be careful reading along with good thinking are two good ways to select the subject matter. 30  Ways of selecting top subject In fact, we say they may notice that the selection of top subject comes of free selection. It is free and Direct selection of the researcher. There is another way when the researcher selects his top subject by the assistant of a supervisor. There is also a third way of selection when both the supervisor and the researcher may select the top subject. 31 Ways of selection are as follows: A. Selection of subject top by the researcher him\herself The selection of the subject matter by the researcher him\herself is away for him\her to be acquainted and satisfied with the subject matter. The researcher feels qualified of the subject matter. The direct way needs a researcher who got a deep thinking and wide overlooking. If the researcher is lacking the knowhow or is lacking the good linder standing as most of cases, the researcher may find him\herself in an arrow subject matter or hard for research. 32 B. Selection of subject top by the supervisor The supervisor alone by him\herself may select the subject top without any contribution of the researcher. He\she will accept the subject top. Some of supervisors because of their expertise and because of controlling the knowhow may find him \herself more effective in selecting the subject matter. This way of subject selection depends on what the supervisor has gotten. 33 In the same time, the researcher him\herself may tell his\her supervisor about any impossibility in the way of selection. This way of selection may not allow the researcher to prepare his plane of research. The cause of any impossibility comes from background of researcher when he\she is not having wide overlooking. 34 C. the selection of the subject top by a contribution of the supervisor and researcher Finally, the selection of the subject top is done by the advice of the supervisor and the researcher. This method may be done by a selection of the researcher and the acceptance of the supervisor. The supervisor him\herself may add some alterations to the selection. The supervisor may advice a subject top and advice the researcher to read deeply more and the researcher may accept this method. The selection may realize of both efforts of both of them. This way is better than the past two methods. 35 Restrictions of the selection of the top of the subject These restrictions are: the subject top must be a new one, must be signified, the idea of it must be clear, and it must be acquainted to the researcher. These restrictions are as follows: First, the subject of must be a new one. A new subject means new-fangled, newly come into use or fashion. A new subject does not mean it did not happen before. It means that the way of the treatment in another way or solution. It means that the research is valuable in touching new sides of treatment. 36 The research is valuable when it gives another solution that was not touched once before. The researcher is adding a compilation to any lacks to some studies which were unfinished. It is important that the researcher is giving new results to the logic of the law study. 37 Secondly, the subject must be limited The subject top must be done within limits of academic research. It should not be vast, over limits or including element that is not related to the subject matter. The researcher him\herself must be concentrated with a sufficient aim of the research. The researcher must not be related with narrow ideas that have no effect on the research. The good research should follow the logic value acquainted with the academic degree which the researcher is aiming to obtain. The criterion of the research is related to the outcome of the study and what he\she realized in his\her research. 38 39 Thirdly, the idea of the research must be clear: The idea of the research must be clear in the mind of the researcher which he\she is keeping in the background. He\she must know the problem that urged him\her to select the subject top. The researcher must be capable of finding good Solutions and logic results, if the researcher spends enough time in deep reading. If the idea of the subject top is not clear in his\her mind he\she will not be able to eliminate ideas not related to research and he\she will include what is not of effect to the research. Many researchers spend long time in the study without good effect because of unclear subject top. 40 Fourthly, the subject up must be acquainted with the capacity of the researcher The subject of acquainted with the capacity of the researcher of his\her mentality, financially, and time being. Every researcher must keep in mind that probable of research, if he\she is obliged to finish the research within limited period. At last the researcher must be aware of his\her financial capability when selecting his\her subject matter. 41  Part Five How to prepare the plan of the research The plan of the research is the total skeleton of it. It is the framework of the research. It is the first step of the research, without this plan the academic research is not registered in the Academy. To know how to prepare a plan you have to know what the plan is. You have to know about the elements of preparing. You should know what the plan is, what the elements of the plan are, at last you have the knowhow to alter your plan when you need to modify it. 42 What is the plan and what are its limits The plan is the total skeleton of the research. It is the outline of the research. It is the map of the building. To start the study without having a plan is exactly like one who follows a road without knowing its end. The plan of the research is different totally from the classification of research. The plan includes the limits of research, strategy of research, and the scientific method of the research. It includes also the probable results of the researcher and parts of the subject matter. Some researchers do some mixing between the plan and the classification of subject matter which is in fact a part of the plan. 43 44 Conditions and restrictions of the plan There are some restrictions to be followed: The plan of the research should not be a redundancy of others working or previous researches. It must be the outcome of the study of researches. It must be also acquainted to the subject matter. The researcher should be moderate when he\she distributes parts of the research. It means he\she is not giving to extremes in action, views, or expression. He\she keeps good care in keeping logic relations between parts of the plan. There must be a kind of collaboration between the top of research and the plan itself. It is not acceptable to interfere alien ideas in the 45 research. Top ideas of the parts and top ideas of subsection should be limited and should not be detailed. 46  Element of the plan Latin element of the plan In Latin system, the plan is divided into introduction, two parts and the end. Every part of the two parts should be divided into subsection. Every section should be divided into subsections. In the Anglo-American system, the subject of the research should be divided into an introduction, some parts and the end of all. 47  Part Six Elements of scientific research Scientific research stands on three elements which are: the researcher, the subject of research and the supervisor. This part is concerned with the subject of research, how to select the subject matter out of many subjects? This subject matter is the first range of all rangers. How the researcher imagines that most of subjects are covered? It is so critical when the researcher did not think deeply or when he/she is in harry in selecting his\her subject matter. The reason of this comes when the researcher is satisfied with the lops of subjects without him\herself to go through contents of any general book reference. 48 49 It would be profitable when he or she read more detailed subjects and when he/she read more detailed subjects and when he\she thinks of what he\she got from deep thinking. So, be careful reading along with good thinking are two good ways to select the subject matter. Ways of selecting top subject In fact, we say they may notice that the selection of top subject comes of free selection. It is free and Direct selection of the researcher. There is another way when the researcher selects his top subject by the assistant of a supervisor. There is also a third way of selection when both the 50 supervisor and the researcher may select the top subject. 51 Ways of selection are as follows: ​. Selection of subject top by the A researcher him\herself The selection of the subject matter by the researcher him\herself is away for him\her to be acquainted and satisfied with the subject matter. The researcher feels qualified of the subject matter. The direct way needs a researcher who got a deep thinking and wide overlooking. If the researcher is lacking the knowhow or is lacking the good linder standing as most of cases, the researcher may find him\herself in an arrow subject matter or hard for research. 52 53 B. Selection of subject top by the supervisor The supervisor alone by him\herself may select the subject top without any contribution of the researcher. He\she will accept the subject top. Some of supervisors because of their expertise and because of controlling the knowhow may find him \herself more effective in selecting the subject matter. This way of subject selection depends on what the supervisor has gotten. In the same time, the researcher him\herself may tell his\her supervisor about any impossibility in the way of selection. This way of selection may not allow the researcher to prepare his plane of research. The cause of any impossibility comes from background of 54 researcher when he\she is not having wide overlooking. 55 C. the selection of the subject top by a contribution of the supervisor and researcher Finally, the selection of the subject top is done by the advice of the supervisor and the researcher. This method may be done by a selection of the researcher and the acceptance of the supervisor. The supervisor him\herself may add some alterations to the selection. The supervisor may advice a subject top and advice the researcher to read deeply more and the researcher may accept this method. The selection may realize of both efforts of both of them. This way is better than the past two methods. 56 Restrictions of the selection of the top of the subject These restrictions are: the subject top must be a new one, must be signified, the idea of it must be clear, and it must be acquainted to the researcher. These restrictions are as follows: First, the subject of must be a new one. A new subject means new-fangled, newly come into use or fashion. A new subject does not mean it did not happen before. It means that the way of the treatment in another way or solution. It means that the research is valuable in touching new sides of treatment. The research is valuable when it gives another solution that was not touched once before. The researcher is 57 adding a compilation to any lacks to some studies which were unfinished. It is important that the researcher is giving new results to the logic of the law study. 58 Secondly, the subject must be limited The subject top must be done within limits of academic research. It should not be vast, over limits or including element that is not related to the subject matter. The researcher him\herself must be concentrated with a sufficient aim of the research. The researcher must not be related with narrow ideas that have no effect on the research. The good research should follow the logic value acquainted with the academic degree which the researcher is aiming to obtain. The criterion of the research is related to the outcome of the study and what he\she realized in his\her research. 59 Thirdly, the idea of the research must be clear: The idea of the research must be clear in the mind of the researcher which he\she is keeping in the background. He\she must know the problem that urged him\her to select the subject top. The researcher must be capable of finding good Solutions and logic results, if the researcher spends enough time in deep reading. If the idea of the subject top is not clear in his\her mind he\she will not be able to eliminate ideas not related to research and he\she will include what is not of effect to the research. Many researchers spend long time in the study without good effect because of unclear subject top. 60 Fourthly, the subject up must be acquainted with the capacity of the researcher The subject of acquainted with the capacity of the researcher of his\her mentality, financially, and time being. Every researcher must keep in mind that probable of research, if he\she is obliged to finish the research within limited period. At last the researcher must be aware of his\her financial capability when selecting his\her subject matter. 61  Part Seven How to prepare the plan of the research The plan of the research is the total skeleton of it. It is the framework of the research. It is the first step of the research, without this plan the academic research is not registered in the Academy. To know how to prepare a plan you have to know what the plan is. You have to know about the elements of preparing. You should know what the plan is, what the elements of the plan are, at last you have the knowhow to alter your plan when you need to modify it. What is the plan and what are its limits 62 The plan is the total skeleton of the research. It is the outline of the research. It is the map of the building. To start the study without having a plan is exactly like one who follows a road without knowing its end. The plan of the research is different totally from the classification of research. The plan includes the limits of research, strategy of research, and the scientific method of the research. It includes also the probable results of the researcher and parts of the subject matter. Some researchers do some mixing between the plan and the classification of subject matter which is in fact a part of the plan. 63  Part Eight Capacity of the researcher Deep reading and wide overlooking: The researcher must be full of enthusiasm to obtain an academic degree. He or she must be interested in obtaining good knowledge in different sciences. In the same time, he should read and analyze all what is related to his main subject matter. He must feel that he is expected to read all rules and theories which are related to his specialty. He is expected to be a deep reader and wide overlooking in all rules and general theories and his specialty. In addition to that he must know all about 64 principles of other kinds of knowledge which are related to his study. He should command other languages. Capacity for the researcher’s good patience human being: Good patience means to be self-qualified of deep happiness in deep study. The researchers and self-researcher must be self-confident in spending time in deep study. The researcher must have endurance and patience. He or she must be self-patient while searching and analyzing and within the day of arbitration. 65 66