TOPIC 2. Legal Research: An Introduction PDF

_____________________________________________________________ TOPIC 2 LEGAL RESEARCH: AN INTRODUCTION - - - [T]he scholars --- must announce that their needs for legal research arise from a determination to do something new – to look at the world...

_____________________________________________________________ TOPIC 2 LEGAL RESEARCH: AN INTRODUCTION - - - [T]he scholars --- must announce that their needs for legal research arise from a determination to do something new – to look at the world with unbiased eyes, to try to find out how and why the law ticks, to see whether the law is in fact serving the needs of society today. - - - The touchstone of researcher is the open, inquiring mind. - - - Legal research will get somewhere only if legal scholars abandon any thought that there is something sacred about the law as it is. Even if we accept certain values in our society as sacred, this does not make any particular legal proposition sacred. George D Braden There is no shortcut to the truth --- no way to gain knowledge of the universe except through the gateway of scientific method. Karl Pearson STRUCTURE LEGAL RESEARCH: AN INTRODUCTION 2.1 What is research? 2.1.1 Meaning of research 2.1.2 Objectives of research 2.1.3 Motivation in research 2.1.4 Research and scientific method 2.2 Types of research 2.2.1 Descriptive vs. Analytical Research 2.2.2 Applied vs. Fundamental Research 2.2.3 Quantitative vs. Qualitative Research 8  2.2.4 Conceptual vs. Empirical Research 2.3 Research Methods and Research Methodology 2.4 What is legal research? 2.5 Scope and relevance of legal research 2.5.1 Nature and Scope of Legal Research 2.5.2 Scope of Legal Research in the Common Law System and the Civil Law System 2.6 Importance (Purpose) of legal research 2.6.1 Ascertainment of law 2.6.2 Highlighting inbuilt ‘gaps’ and ‘ambiguities’ 2.6.3 Determining consistency, coherence and stability of law 2.6.4 Social auditing of law 2.6.5 Suggesting reforms in law 2.7 Legal research by whom? 2.7.1 By a Legislator 2.7.2 By a Judge 2.7.3 By a Lawyer 2.7.4 By a Law Teacher and Student of Law 2.8 Legal research and methodology 2.9 Sources of information 2.9.1 Primary sources 2.9.2 Secondary sources 2.9.3 Tertiary sources 2.10 Major stages in legal research 2.10.1 Identification and formulation of a research problem 2.10.2 Review of literature 2.10.3 Formulation of a hypothesis 2.10.4 Research design 2.10.5 Collection of data 2.10.6 Analysis of data 2.10.7 Interpretation of data 2.10.8 Research report 2.11 Legal Research in Ethiopia: Perspectives and Problems 9 OBJECTIVES After going through the Unit, you will be able to:  Explain the research methodology and its constituents  State the various types of research approaches  Describe the various steps involved in the research process  Describe the various types of research designs appropriate for different types of research  Explain legal research methods and methodology  Explain importance of legal research in a modern welfare state  Explain nature, scope and limitation of legal research  Explain major stages in carrying legal research 2.1 WHAT IS RESEARCH? 2.1.1 Meaning of Research The term ‘research’ has received a number of varied meanings and explanations. In its ordinary sense, the term refers to a search for knowledge. The Advanced Learner’s Dictionary of Current English spells out the meaning of ‘research’ as ‘a careful investigation or inquiry specifically through search for new facts in any branch of knowledge’. 7 Redman and Mory, in a similar tone, define research as a ‘systematized effort to gain new knowledge’. 8 According to the Webster’s International Dictionary, ‘research’ is ‘a careful, critical inquiry or explanation in seeking facts or principles; diligent investigation in order to ascertain something’. While Webster Dictionary explains the term ‘research’ to mean ‘a systematic investigation towards increasing the sum of knowledge’. D Slesinger and M Stephenson perceived the term ‘research’ as ‘the manipulation of things, concepts or symbols for the purpose of generalizing to extend, correct or verify knowledge, whether that knowledge aids in construction of 7 The Advanced Learner’s Dictionary of Current English (Oxford, 1952) 1069. 8 L V Red man and A V H Mory, The Romance of Research (1923) 10. 10 theory or in the practice of an art’. 9 The 1911 Cambridge edition of the Encyclopedia Britannica defines research as: The act of searching into a matter closely and carefully, inquiry directed to the discovery of truth and in particular, the trained scientific investigation of the principles and facts of any subject, based on original and first hand study of authorities or experiment. Investigations of every kind which has been based on original sources of knowledge may be styled research and it may be said that without ‘research’ no authoritative works have been written, no scientific discoveries or inventions made, no theories of any value propounded – A combined reading of all the above- mentioned ‘explanations’ of the term ‘research’ reveals that ‘research’ is the ‘careful, diligent and exhaustive investigation of a specific subject matter’ with a view to knowing the truth and making original contribution in the existing stock of knowledge. It is, in short, ‘systematic search’ in ‘pursuit of knowledge’ of the researcher. Mere aimless, unrecorded, unchecked search is not research which can never lead to valid conclusions. But diligent, intelligent, continued search for something is research. It refers to the process and means to acquire knowledge about any natural or human phenomenon. It involves a systematic inquiry into a phenomenon of interest. It is the process of discovering or uncovering new facts. It aims to contribute to the thitherto known information of the phenomenon. Therefore, only systematic intensive investigation into, or inquiry of, fact qualifies to get the label of ‘research’. And a ‘search’ becomes ‘systematic’ when a researcher, in his quest for knowledge and pursuit of truth, attempts to collect the required information from various sources and in a variety of ways systematically and exposes data to a severe and intensive scrutiny. Research, thus, involves systematic scientific investigation of facts (or their hidden or unknown facets) with a view to determining or ascertaining something, which may satisfy the curiosity of the investigator and carry forward (his) knowledge. Such research involves identification of a research 9 D Slesinger and M Stephenson, The Encyclopedia of Social Sciences, vol IX (MacMillan, 1930). 11 problem, the ascertainment of facts, their logical ordering and classification, the use of (inductive and deductive) logic to interpret the collected and classified facts and the assertion of conclusions premised on, and supported by, the collected information. ‘Research’, therefore, means a scientific collection and inspection of facts with a view to determining (or searching) something, which may satisfy the curiosity of the investigator and carry forward his knowledge. It requires a sound design for investigation, the appropriate methods of data collection and a mode of analysis. The prefix ‘re’ in the word ‘research’, according to the Concise Oxford Dictionary, means ‘repeated, frequent or intensive’. ‘Research’, therefore, implies a continued ‘frequentative’ ‘intensive’ ‘search’ for truth and/or an inquiry for the verification of a fresh theory or for supplementing a prevailing theory. Research is, thus, a continuum. 2.1.2 Objectives of Research The purpose of research, thus, is to acquire knowledge or to know about ‘something’ in a scientific and systematic way. Its purpose may, however, be to find solution to the identified problem. The former is referred to as ‘basic’ or ‘pure’ or ‘fundamental’ research while the latter takes the label of ‘applied’ or ‘action’ research. Fundamental research is mainly concerned with generalizations and with formulation of a theory (or re-confirmation of the existing theory). Its main aim is to acquire knowledge for the sake of acquiring it. Applied research, on the other hand, aims at finding or discovering solutions or answers to the identified ‘problem(s)’ or ‘question(s)’. Obviously, every research study has its own goal(s) or objective(s). Nevertheless, ‘research objective’ of a given research study ma y fall under either of the following broad categories of ‘research objectives’: 1. To gain familiarity with a phenomenon or to achieve new insights into it. 2. To portray accurately the characteristics of a particular individual, situation or a group. 3. To determine the frequency with which something occurs or with which it is associated. 12 4. To test causal relationship between two or more than two facts or situations. 10 5. To ‘know’ and ‘understand’ a phenomenon with a view to formulating the problem precisely. 6. To ‘describe’ accurately a given phenomenon and to test hypotheses about relationships among its different dimensions. ? Activity 2.1: Grouping yourself, from three to five students, discuss the practical significance of research in analysis of legal provisions and principles, and to study relationship between FDRE Constitution and Regional Constitutions? _____________________________________________________________________ _____________________________________________________________________ 2.1.3 Motivation in Research An equally important question, namely, what makes a scholar to undertake research, deserves our attention. A general response to the question, probably, would be that a person, who is curious to know something more about something, undertakes a systematic study of that something to kill his curiosity. His quest for knowing about, or acquiring knowledge of, ‘something’, plausibly motivates him to undertake research of that ‘something’. However, there could be a couple of other ‘motivations’ for him to get indulged into research. They are: 1. Desire to earn a research degree along with its consequential benefits. 2. His ‘concern’ for thitherto ‘unsolved’ or ‘unexplored’ ‘problem’ and his keen desire to seek solution therefor, and be a proud recipient of that contribution. 3. Desire to acquire reputation and acclaim from his fellow men. 4. Desire to get intellectual joy of doing some ‘creative’ work. 5. Desire to render some service to society. 11 However, when it concerns with legal research, a scholar of law, in addition, needs to convince himself that his desire for legal research arises from his determination to do 10 C R Kothari, Research Methodology: Methods and Techniques (New Age International Publishers, New Delhi, 2nd edn, 2004, Reprint 2007) 2. 11 Ibid. 13 something new-to look at the world with unbiased eyes, to try with open and inquiring mind to find out how and why the law tricks, to see whether the law is in fact serving the needs of today. Sometimes he, particularly when he is interested in finding out social utility of law, may have to come out of bookish introspection and to venture into empirical study. He may also require joining hands with other social scientists. 12 2.1.4 Research and Scientific Method Research, as stated earlier, is a systematic inquiry into a ‘fact’. It involves the collection of facts, analysis of the collected facts, and logical inferences drawn from the analyzed facts. A method of inquiry becomes systematic only when the researcher resorts to a systematic approach to, and follows a scientific method of inquiry into, the fact under investigation. Research, simply put, is an endeavor to arrive at certain conclusions through the application of scientific methods. ‘There is no shortcut to the truth --- no way to gain knowledge of the universe except through the gateway of scientific method.’ 13 Scientific method is loaded with logical considerations. It is the pursuit of truth as determined by logical considerations. The ideal of science is to achieve a systematic inter-relation of facts. Scientific method attempts to achieve ‘this ideal by experimentation, observation, logical arguments from accepted postulates and a combination of these three in varying proportions’. 14 In scientific method, logic aids in formulating propositions explicitly and accurately so that their possible alternatives become clear. Further, logic develops the consequences of such alternatives, and when these are compared with observable phenomenon, it becomes possible for the researcher or the scientist to state which alternative is most in harmony with the observed facts. All this is done through experimentation and survey investigations, which constitute the integral parts of scientific method. ‘The scientific method’, according to Karl Pearson, ‘is one and the same in all branches (of science) and that method is the method of all logical trained minds --- the unity of all sciences consists alone in its methods, not its material; the man who classifies facts of any kind 12 George D Braden, Legal Research: A Variat ion on an Old Lament, 5 Jr o f Legal Edu 39 (1952-53). 13 Karl Pearson, The Gra mmar of Science (Meridian Books, Inc., New York, 1957) 10. 14 Bernard Ostle & Richard W Mensing, Statistics in Research (the Iowa State University Press, Ames Iowa, 3rd edn, 1975) 2. 14 whatever, who sees their mutual relation and describes their sequences, is applying the Scientific Method and he is a man of science’. 15 The scientific method is, thus, a method used by the science. Science rests on reason (rationality) and facts. Science is logical, empirical and operational. Scientific method is, therefore, based on certain postulates and has certain characteristics. They are: (i) it is logical, i.e. it is basically concerned with proof based on reason, (ii) it is empirical, i.e. theories are rooted in facts that are verifiable, (iii) it is operational, i.e. it utilizes relevant terms/concepts that help in quantification and conclusion, (iv) it is committed to only objective considerations, (v) it pre-supposes ethical neutrality, i.e. it aims at nothing but making only adequate and correct statements about population objects, (vi) it is propositional, i.e. it results into probabilistic predictions that can be proved or disproved, (vii) its methodology is public, i.e. it is made known to all concerned for critical scrutiny, testing/retesting of propositions, (viii) it tends to be systematic, i.e. indicates inter-relationship and organization between the facts and propositions, and (ix) it aims at theorizing, i.e. formulating most general axioms or scientific theories. 16 Scientific method implies an objective, logical and systematic method, i.e. a method free from personal bias or prejudice, a method to ascertain demonstrable qualities of a phenomenon capable of being verified, a method wherein the researcher is guided by the rules of logical reasoning, a method wherein the investigation proceeds in an orderly manner and a method that implies internal consistency. 17 2.2 TYPES OF R ES EARCH According to C R Kothari, the basic types of research are: (i) Descriptive and Analytical Research, (ii) Applied and Fundamental Research, (iii) Quantitative and 15 Karl Pearson, The Gra mmar of Science, supra n 7, pp 10-12. 16 See, C R Kothari, Research Methodology: Methods and Techniques, supra n 4, pp 9-10, T S Wilkinson & P L Bhandarkar, Methodology and Techniques of Social Research (Himalaya Publishing House, Mumbai, 16th edn, Reprint 2005), chap 1, J T Doby (ed), An Introduction to Social Research (Stackpole, 1967) 16 et. seq., Morris R Cohen & Ernest Nigel, An Introduction to Logic and Scientific Method (HarCourt, Brace, New York, 1934), William J Goode & Paul K Hatt, Methods in Social Research (McGraw-Hill, 1952). 17 C R Kothari, Research Methodology: Methods and Techniques supra n 4, 10. 15 Qualitative Research, and (iv) Conceptual and Empirical Researc h. 18 Each one of these is briefly discussed here below: 2.2.1 Descriptive vs. Analytical Research Descriptive research, as its name suggests, describes the state of affairs as it exists at present. It merely describes the phenomenon or situation under study and its characteristics. It reports only what has happened or what is happening. It therefore does not go into the causes of the phenomenon or situation. The methods commonly used in descriptive research are survey methods of all kinds, including comparative and co-relational methods, and fact- finding enquiries of different kinds. Thus, descriptive research cannot be used for creating causal relationship between variables. While in analytical research, the researcher uses his facts or information alread y available and makes their analysis to make a critical evaluation of the material. 2.2.2 Applied vs. Fundamental Research Applied research or action research aims at finding a solution for an immediate problem. Here the researcher sees his research in a practical context. While in fundamental research or pure research or basic research, the researcher is mainly concerned with generalization and with the formulation of a theory. He undertakes research only to derive some increased knowledge in a field of his inquiry. He is least bothered about its practical context or utility. Research studies concerning human behavior carried on with a view to making generalizations about human behavior fall in the category of fundamental or pure research. But if the research (about human behavior) is carried out with a view to solving a problem (related to human behavior), it falls in the domain of applied or action research. The central aim of applied research is to discover a solution for some pressing practical problem, while that of fundamental research is to find additional information about a phenomenon and thereby to add to the existing body of scientific knowledge. The ‘applied’ scientist is thus works within a set of certain values and norms to which 18 Ibid., pp 2-5. 16 he feels committed. A sociologist, for example, when works with a social problem to find solution therefor and proposes, through a systematic inquiry, a solution or suggests some measures to ameliorate the problem, his research takes the label of ‘applied’ or ‘action’ research. But when he undertakes a study just to find out the ‘what’, ‘how’ of the social problem, his inquiry takes the nomenclature of ‘pure’ or ‘fundamental’ research. However, the above-mentioned ‘distinguishing factor’ between the ‘applied’ and ‘fundamental’ research need not be conceived as a ‘line’ putting the two ‘across’ the ‘line’ forever or an ‘either-or’ dichotomy. In fact, they are not mutually exclusive. There is a constant interplay between the two, each contributing to the other in many ways. 2.2.3. Quantitative vs. Qualitative Research Quantitative research is based on the measurement of quantity or amount. It is applicable to a phenomenon that can be expressed in terms of quantity. It is systematic scientific investigation of quantitative properties of a phenomenon and their inter-relation. The objective of quantitative research is to develop and employ mathematical models, theories and hypotheses pertaining to the phenomenon under inquiry. The process of measurement, thus, is central to quantitative research because it provides fundamental connection between empirical observation and mathematical expression of quantitative relationship. Qualitative research, on the other hand, is concerned with qualitative phenomenon, i.e. phenomenon relating to or involving quality or kind. For example, when a researcher is interested in investigating the reasons for, or motives behind, certain human behavior, say why people think or do certain things, or in investing their attitudes towards, or opinions about, a particular subject or institution, say adultery or judiciary, his research becomes qualitative research. Unlike quantitative research, qualitative research relies on reason behind various aspects of behavior. 17 2.2.4. Conceptual vs. Empirical Research Conceptual research is related to some abstract idea(s) or theory. It is generally used by philosophers and thinkers to develop new concepts or to re- interpret the existing ones. On the other hand, empirical research relies on experie nce or observation alone, often without due regard for system or theory. It is data-based research, coming up with conclusions that are capable of being verified by observation or experiment. It is therefore also known as experimental research. In empirica l research, it is necessary to get facts firsthand, at their source. In such a research, the researcher must first provide himself with a working hypothesis or guess as to the probable results. He then works to gets enough facts (i.e. data) to prove or disprove his hypothesis. ? Activity 2.2: Classify the following published research products, using their titles, into one or more category of the above types of research? Discuss at least two of them with the help of your instructor (If possible read them). i. The Right against Torture: Institutional and Normative Framework, published on the Ethiopian Journal of Legal Education, Vol.1.No.1, July 2008, and written by professor Khushal Vibhute. ii. Abortion Law in Ethiopia, published on Mizan Law Review,Vol.2 No. 1, January 2008,written by Assistant professor Tsehai Wada. iii. Proof of Marriage by Possession of Status: the law and practice, published on Higawint under Ministry of Justice,vol.3,No.1,August 2005,written in Amharic language by Filipos Aynalem. iv. The Child and the Law in Ethiopia: The case of the UN Convention on the Rights of the Child, published on Journal of Ethiopian Law,vol.18, August 1997,Written by Associate Professor Tilahun Teshome. v. Legal Pluralism: Its Promises and Pitfalls for Ethiopia, published on Jimma University Journal of Law,vol.1 No.1,October 2007,written by Alemayehu Fentaw. 2.3 R ES EARCH M ETHODS AND R ESEARCH M ETHODOLOGY 18 The term ‘research methods’ refers to all those methods and techniques that are used by a researcher in conducting his research. The term, thus, refers to the methods, techniques or tools employed by a researcher for collecting and processing of data, establishing the relationship between the data and unknown facts, and evaluating the accuracy of the results obtained. Sometimes, it is used to designate the concepts and procedures employed in the analysis of data, howsoever collected, to arrive at conclusion. In other words, ‘research methods’ are the ‘tools and techniques’ in a ‘tool box’ that can be used for collection of data (or for gathering evidence) and analysis thereof. ‘Research methods’ therefore, can be put into the following three groups: 1. The methods which are concerned with the collection of data [when the data already available are not sufficient to arrive at the required solution]. 2. The statistical techniques [which are used for establishing relationships between the data and the unknowns]. 3. The methods which are used to evaluate the accuracy of the results obtained. The term ‘research methodology’, on the other hand, refers to a ‘way to systematically solve’ the research problem. It may be understood as a ‘science of studying how research is done scientifically’. It involves a study of various steps and methods that a researcher needs generally to adopt in his investigation of a research problem along with the logic behind them. It is a study of not only of methods but also of explanation and justification for using certain research methods and of the methods themselves. It includes in it the philosophy and practice of the whole research process. In other words, research methodology is a set of rules of procedures about the way of conducting research. It includes in it not just a compilation of various research methods but also the rules for their application (in a given situation) and validity (for the research problem at hand). A researcher, therefore, is required to know not only the research methods or techniques but also the methodology, as he needs to decide as well as to understand the relevancy and efficacy of the research methods in pursuing the research problem at hand. He may be confronted with equally relevant and efficacious alternative research methods and techniques at each stage of his research study. He, therefore, 19 has to consciously resort to the research methods and techniques that are most appropriate to carry his investigation in a more systematic manner. This becomes possible only when he is acquainted with the underlying assumptions and utility of various research methods or techniques available to him. A study of research methodology equips him with this kind of knowledge and skill. C R Kothari, bringing out the correlation between research methods and research methodology, observed: --- [R]esearch methodology has many dimensions and research methods do constitute a part of the research methodology. The scope of researc h methodology is wider than that of research methods. Thus, when we talk of research methodology we not only talk of the research methods but also consider the logic behind the methods we use in the context of our research study and explain why we are using a particular method or technique and why we are not using others so that research results are capable of being evaluated either by the researc her himself or by others. Why a research study has been undertaken, how the research problem has been identified, in what way and why the hypothesis has been formulated, what data have been collected and what particular method has been adopted, why particular technique of analyzing data has been used and a host of similar other questions are usually answered when we talk of research methodology concerning a research problem or study. 19 A study of research methodology has the following advantages: 1. It inculcates in a researcher the ability to formulate his research problem in an intelligent manner. 2. It inculcates in him objectivity in perceiving his research problem and seeking solutions therefor. 3. It equips him to carry out his research undertaking in an efficient manner and in a better way. 4. It enables him to take rational decisions at every step of his research. 5. It enables him to design appropriate research technique(s) and to use it (them) in an intelligent and efficient manner. 19 Ibid, 8. 20  6. It enhances his ability to analyze and interpret data with reasonable objectivity and confidence. 7. It enhances ability of the researcher and/or others to evaluate research findings objectively and use the research results in a confident way. 8. It entails a good research. 9. It enables him to find a satisfactory way of acquiring new knowledge. Importance of knowing ‘research methodology’ or ‘the way of doing research’ is well articulated by C R Kothari as follows: In fact, importance of knowing the methodology of research or how research is done stems from the following considerations: (i) --- The knowledge of methodology provides good training specially to the new research worker and enables him to do better research. It helps him to develop disciplined thinking or ‘bent of mind’ to observe the field objectively. --- (ii) Knowledge of how to do research will inculcate the ability to evaluate and use research results with reasonable confidence. -- - (iii) When one knows how research is done, then one may have the satisfaction of acquiring a new intellectual tool which can become a way of looking at the world and of judging every day experience. Accordingly, it enables us to make intelligent decisions concerning problems facing us in practical life at different points of time. Thus, the knowledge of research methodology provides tools to look at things objectively. (iv) --- The knowledge of methodology helps the consumer of research results to evaluate them and enables him to take rational decisions. 20 20 Ibid, 10. 21 2.4 WHAT IS LEGAL R ESEARCH? ‘Legal research’, taking clue from the meaning of ‘research’ as outlined in the preceding pages, may be defined as ‘systematic investigation towards increasing the sum of knowledge of law’. However, a scholar has commented that this definition is ‘too broad’ and ‘lacks articulation’ and proposed a different definition. He observed: Research may be defined as systematic fact- finding (that is, to find what the law is on a particular point) and advancement of the science of law. In a strict sense, legal research is understood as limited to those works which contribute to the advancement of legal science (that is excluding such materials as text-books and case books, etc.) This is a too narrow a view of research and we need not adopt such a restricted definition of legal research. Even the fact- finding is not so easy as it may seem. First, a researcher has to go into the different statutory provisions and the rules made thereunder. Secondly, he may have to examine the mass of case-law which may have accumulated on the point in issue, and it is not an easy matter to derive a clear-cut legal proposition from the tangled mass of case-law. To advance the science of law, it is necessary for a researcher to go into the underlying principles or reasons of the law. The enquiries will have to be: Why a particular rule? What led to its adoption? What are its effects? Whether it is suited to the present conditions? How can it be improved? Whether it needs to be replaced entirely by a new rule? 21 Thus, the term ‘legal research’ take into its ambit ‘a systematic finding’ or ‘ascertaining’ law’ on the identified topic or in the given area as well as ‘an inquiry’ into ‘law’ with a view to making advancement in the science of law. Finding law on a particular subject, as stated earlier, is not an easy task. There may be a number of statutes (as well as statutory provisions scattered in different statutes) with frequent amendments on the subject under inquiry. In addition, these statutes and 21 S N Jain, Legal Research and Methodology, 14 Jr o f Ind L Inst 487 (1972), at 490. 22 statutory provisions may be supplemented from time to time by a bulk of rules, regulations, orders, directives and government resolutions. Similarly, one (particularly in the common law jurisdictions) requires to look for pouring judicial pronouncements of the higher judicial institutions interpreting these provisions for finding ‘true’ meaning and ambit of the legal provisions. A quest for making advancement in the science of law requires a legal researcher to systematically probe into underlying ‘principles’ of, and ‘reasons’ for, ‘law’. Thus, legal research ha s a very wide scope as it, in ultimate analysis, involves an inquiry into one or the other dimension or aspect of ‘law’. Legal research is, thus, the process of identifying and retrieving information necessary to support legal decision-making. It includes in it 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. ? Activity 2.3.First, list and then discuss the elements constituting the meaning of legal research? _____________________________________________________________________ ____________________________________________________________________ 2.5 SCOPE AND R ELEVANCE OF LEGAL R ESEARCH 2.5.1 Nature and Scope of Legal Research A Welfare and Democratic State envisages socio-economic transformation for the development of a ‘just social order’ based on ‘equality and socio-economic justice’. Constitution of such a country invariably contemplates extensive use of law for bringing about the desired socio-economic transformation of the social order. It allows, rather expects, the state to use its legislative power to bring about such a change. Any serious step by the state towards social amelioration and economic progress requires legislation and legal authority. Law, therefore, acts as a catalytic agent for such socio-economic transformation. 23 However, in a democratic political set- up, the legislative processes have to be informed by public opinion. At the same time, public opinion is required to be changed through legislative process and concretization. 22 A good Legislator ought to know the coercion-potential of the laws and how much social resistance they can withstand. He must, among other things, to know the social mores, habits, and culture. Similarly, he must be able to take a realistic estimate of the effect of law by taking into account its inherent strengths and weaknesses. Jeremy Bentham talked of legislation as a science and wanted all the laws to be restructured on the touchstone of utility. Roscoe Pound conceived law as an instrument of social engineering. Both, therefore, visualized legislation on rational, humanistic and pragmatic basis. Such legislation requires an ongoing research into the facts and also of the interaction between the law and social & human behavior. If we find that most of the social welfare legislations have failed to bring the desired changes or transformation, it may be because they were not planned systematically and no cost- benefit analysis was done at their formulation stage. Law has to be preceded by a serious study of the dynamics of law and social changes. In the absence of such a study, law is bound to be ineffective and an utter failure in its mission. It would reduce merely to a legislative décor and symbolic. A set of questions, therefore, warrants a careful and critical investigation. Prominent among them are: Why is a legislation made? What are the forces, lobbies or pressure groups that activated the legislation, and for what reasons or objectives? What are the forces or pressure groups that opposed the legislation and on what grounds? What led to its adoption? What are its contemplated effects? How much is the success percentage of it as a social legislation? Why did the law beco me dysfunctional? Why it remained un-operationalized or less-operatinalized? What corrective measures need to take to make it more effective? Does it merely need some modifications or replacement by a new statute? 22 See, Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (MacMillan & Co, London, 1924), Lectures I, II & III; Morris Ginsberg, Law and Opinion in England in the Twentieth Century, (1959), and Julius Stone, Social Dimensions of Law and Justice (Stanford University, Stanford, 1966). 24 In a modern democratic polity the major state- governance is through administrative processes. Administrative processes range from making of laws to adjudication. It involves delegated or secondary legislation (in the form of rules, regulations, orders, notifications, bye- laws and directives); administrative adjudication (in the form of tribunals and quasi-judicial conciliatory bodies). It also regulates trade, business; secures essential commodities for people; involves in export and import of goods; undertakes and manages public-sector enterprises, and exercises a number of discretionary powers in a variety of ways and situations. A continuous careful inquiry into: the need for the delegated legislation and the legislative policy reflected therein; structural and operational ambits of the body created thereunder; inbuilt- mechanism for ensuring smooth execution of the policy; (ab)use of discretionary powers; working of different administrative bodies, for example, becomes imperative. A continuous research into the policies and administrative processes and the way in which discretionary powers are exercised is necessary to bring permissible uniformity in the administrative processes and procedures and to prevent abuse of discretionary powers by the administrative authorities. Such an inquiry is also necessary to make administration efficient and purposeful. Judicial process can also be an area of research. Courts, at least in Common Law Jurisdictions, do not only interpret law but also create law through their judicial pronouncements. Judges, as adjudicators, also invariably highlight inbuilt weaknesses and shortcomings of law in their judicial deliberations. However, it is conceded that judicial pronouncements, howsoever they are claimed to be objective, in ultimate analysis, contain an element of subjectivity. Invariably, a judgment reflects personality and judicial background and philosophy of the judge. It therefore becomes necessary to carry out research into some of the pertinent questions that associate with judicial process. Some of them are: Do courts make law?; Should they make law?; how should they make law?; What are the limits within which they are expected to make law?; What is their family, educational and social background?, and What kind of personal, social and judicial philosophy they hold and preach? Lawyers play a pivotal role in the decision- making process. Lawyers appearing in a case in fact feed the judge with relevant authorities and policy-oriented arguments. Therefore, a study of social and educational background of lawyers a nd of their 25 training carries significance in understanding the decision- making process and judicial process. Behavioral studies of lawyers and judges, therefore, become necessary to appreciate the realities of judicial process. Similarly, it becomes necessary to methodologically scrutinize the materials used by them in the decision- making process and the theoretical, social and philosophical premises used therefor. Ideally, judicial decision requires three types of research inputs, the conceptual or ideological, the doctrinal, and the empirical. Such a study would demystify the judicial process and thereby would built up greater legitimacy of the judicial processes and strengthen peoples’ respect for the courts’ as justice institutions. If social audit of judicial performance is desirable, legal research becomes unavoidable. Legal research, therefore, takes into its ambit: 1. Doctrinal Research- It is a research into legal rules, principles, concepts or doctrines. It involves a rigorous systematic exposition, analysis and critical evaluation of legal rules, principles or doctrines and their inter- relationship. It arranges the existing law in order and provides thematic parameters for such an order. It also concerns with critical review of legislations and of decisional processes and their underlying policy. 2. Research in theory- It involves an inquiry into conceptual bases of legal rules, principles or doctrines. It provides stimulus and intellectual infrastructure for empirical research as well as for advancements in law through legislative, judicial and administrative process. 3. Empirical investigations- It assesses impact of law and reveals the gap between legal idealism and social reality. Perceiving the idea of law as a social phenomenon, a researcher explores social, political, economic and cultural dimensions or implications of law. 4. Reform-oriented Research- It, based on empirical study and critical examination of law, recommends changes in law and legal institutions. 23 23 See generally, Dennis Pearce, Enid Campbell, & Don Hard ing, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (AGPS, 1987) and Harry Arthurs, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (1983). 26 These broad categories of legal research, which can be conveniently re- grouped into doctrinal legal research and non-doctrinal legal research, obviously are not mutually exclusive. They overlap each other. 2.5.2 Scope of Legal Research in the Common Law System and the Civil Law System At this juncture, it is necessary to have some broad, but pertinent, observations about the nature and scope of legal research in the common law and civil law systems. In the common law system, Legislature enacts substantive law. Executive wing of a State, drawing authorization from a substantive law, supplements the substantive law in the form of rules, regulations, statutory orders, notifications and byelaws. While courts, as and when called upon, interpret the ‘law’ and gives finality to it through their judicial pronouncements. Courts, particularly higher ones, however, do not only ‘apply’ law to the ‘facts’ and ‘issues’ brought and agitated before them but also, through their judicial pronouncements, ‘make’ law. 24 They are, generally, bestowed with wide judicial discretion. They are empowered to determine ‘legality’ as well as adjudicate ‘finality’ of ‘law’ or ‘legal provision’. The lower courts are bound by ‘precedent’. In the common law system, therefore, the basic assumption is that if there is a judicial decision in the past having facts and legal issues similar to those in the case currently before the court, the outcome of the past case should control the outcome of the present case. Therefore, in the common law system Legislature, Executive as well as Judiciary do constitute ‘source’ of law. A legal researcher, with a view to understanding ‘law’ on a particular topic or subject, therefore has to ‘locate’, ‘appreciate’ and analyze apt Acts of Parliament, subsidiary legislative instruments, if any, and judicial pronouncements. He has to focus his attention on the primary source materials, like the Constitution and Statutes (along with statutory instruments), and leading judicial pronouncements (the precedents). 24 See, Ben jamin Cardozo, the Nature of Judicial Process (Yale University Press, 1921). Also reprinted in, Margaret E Hall (ed), Selected Writings of Benjamin Nathan Cardozo (Fallon Publications, New Yo rk, 1947) 107 et. seq. 27 By contrast, in the civil law system, Acts of Parliament, supplemented by appropriate Regulations and Directives, if any, do constitute ‘primary’ sources of ‘law’. Courts are required only to ‘apply’ them. In no way, they are expected to ‘make’ law through their judicial pronouncements. Hence, the law of precedent, unlike in common law jurisdictions, is irrelevant. Nevertheless, a judicial statement of a higher court may have an inspirational or persuasive value in terms of its reasoning. In civil law system, a legal researcher, with a view understanding law on a topic, therefore, has to merely concentrate on the primary sources of law. However, there is hardly any material difference in the nature and scope of legal research in these two legal systems- the common law and the civil law system. In both the systems, broad strategy and utility of legal research is alike. They only differ in their emphasis on the material required/used for carrying out legal research. A legal researcher from the common law jurisdiction relies heavily upon, and gives importance to, apt statutory materials (the Constitution, statutes and other statutory instruments) and case reports (including case comments and case digests) for ‘ascertaining’, ‘understanding’ and ‘appreciating’ law on the topic or area of his inquiry. A legal researcher from a civil law system, on the other hand, focuses and prominently relies on the statutory materials for ‘ascertaining’, ‘understanding’, and ‘appreciating’ law. Under both the legal systems, a researcher has to resort to identical methods of data collection and of analysis when he is interested in highlighting ‘social dimension of law’ or ‘gap’ between the legal idealism and social reality or assessing ‘impact of law’ on the social behavioral pattern. In other words, the strategy and paradigm of socio- legal research in both the systems are similar. Ethiopia is a civil law country. Nevertheless, the Ethiopian legal system exhibits some common law elements. In fact, foreign Commissions, headed by the persons having influence of continental civil and English common law, drafted the following six basic Codes, which constitute the real body of law of Ethiopia. They are: (i) the Penal Code of 1957 (drafted by the Commission headed by Professor Jean Graven of Switzerland); (ii) the Civil Code of 1960 (drafted by the Commission headed by Professor R David of France); (iii) the Maritime Code of 1960 (drafted by the Commission headed by Professor J Escarra of France); (iv) the Commercial Code of 1960 (drafted by the 28 Commission headed by Professor J. Escarra of France and A. Jauffret of France); (v) the Criminal Procedure Code of 1961 (drafted by the Commission headed by Sir Charles Matthews of England), and (vi) the Civil Procedure Code of 1965 (drafted by the Commission headed by Ato Nirayo Esayas, Assistant Minister of Codification of the Ethiopian Ministry of Justice). Though some of these Codes are subsequently modified and revised, their basic framework remained intact. Further, though the common law doctrine of stare decisis is not applicable in Ethiopia, it would be of interest to note that the recently enacted Proclamation No. 454/200525 inserted sub-Article (4) in Article 10 of the Proclamation No. 25/1996 26 to explicitly make decisions of the cassation division of the Federal Supreme Court binding on federal and regional council at all levels. It also, in a way, statutorily recognized the power of the cassation division to overrule its earlier decisions. The newly inserted sub-Article (4) runs as under: Interpretation of a low (sic) by the Federal Supreme Court rendered by the cassation division with not less than five judges shall be binding on federal as well as regional council at all levels. The cassation division may however render a different legal interpretation some othe r time. 27 It would be of further interest to note here that the Proclamation of 454/2005 also inserted Sub-Article (5) in Article 10 of the Proclamation 95/1996 to mandate the Federal Supreme Court to publish and distribute decisions of the Cassation Divis ion having such binding character. It says: The Federal Supreme Court shall publish and distribute decisions of the cassation division that contain binding interpretation of laws to all levels of courts and other relevant bodies. 28 25 Federal Courts Proclamation Reamend ment Proclamation No. 454/2005, Federal Negarit Gazeta, 11th Year No. 42, 14th June, 2005, p 3121. 26 Federal Courts Proclamation No. 25/1996’, Federal Negarit Gazeta, 2nd Year No. 13, 15th February, 1996, p 129. 27 See, Art icle 2(1). 28 Id. The Journal of Ethiopian Law of the Faculty of Law of the Addis Ababa University has also started publishing (selective) decisions of Cassation Division fro m its issue of 2006. Since 1964, the Faculty of Law of the Haile Sellassie I University (now Addis Ababa University) began to collect and 29 Thus, the Ethiopian legal system has, thus, some common law elements too. 2.6 IMPORTANCE (PURPOSE) OF LEGAL R ES EARCH29 Law, as mentioned earlier, does not operate in a vacuum. It operates in a complex ‘social setting’. It reflects social attitudes and behavior. It also seeks to mould and control social attitudes and behavior of people to ensure that they flow the expected channel. However, social values and attitudes, existing as well as expected, keep on changing. It makes the law to be dynamic and cope with the changing social ethos. Further, ongoing scientific and technological developments add to these complexities by creating new complex human relationship that needs law to regulate. 30 In such situations, legal research, inter alia, becomes necessary: (i) for ascertainment of law on a given topic or subject, (ii) to highlight ambiguities and inbuilt weaknesses of law, (iii) to critically examine legal provisions, principles or doctrines with a view to see consistency, coherence and stability of law and its underlying policy, (iv) to undertake social audit of law with a view to highlighting its pre- legislative ‘forces’ and post- legislative ‘impacts’, and (v) to make suggestions for improvements in, and development of, law. 2.6.1 Ascertainment of law It is needless to mention that laws can never be perfect and final in a dynamic society. ‘If our numerous laws’, a scholar observed, ‘were perfect, if social control were automatic, legal scholarship, like the State of the Marxists, could be left to wither away’. ‘But our laws’, according to him, ‘are not perfect and final, and cannot be so in a dynamic society: they are not always even intelligible, and if intelligible, not always intelligently made.’ 31 Therefore, a systematic effort is required to ascertain or find law on a given subject/topic. He requires not only to locate and to look into relevant publish in its Ethiopian Law Journal a few select judgments of the appellate courts on irregular basis. See, its various issues. 29 Also see, ‘Unit 3: Doctrinal and Non-doctrinal Legal Research’, infra. 30 For examp le, recent developments in science, such as ‘test-tube baby’ and ‘human cloning’, have compelled law to address to parent-hood and property rights. 31 B A Wortley, So me Reflections on Legal Research After Thirty Years, 7 Jr of the Society of Public Teachers of Law (New Series) 249-250 (1964-1965). 30 Act(s) of Parliament but also to locate relevant secondary legislative instruments in the form of rules, regulations, orders, directions, notifications, and byelaws and judicial pronouncements thereon. It is a matter of common experience that these legislative instruments are scattered and are not easily traceable. More than one Acts may have bearing on the topic under study. He, therefore, needs to be more careful in locating these laws. Most of the subsidiary legislative instruments are not published on time in Official Gazette. Most of the times they are published after they have come into force. A plethora of judicial pronouncements of different higher judicial institutions including of the apex court adds to the difficulty in ascertainment of law. He needs to locate, analyze and digest these judicial pronouncements. Finding law on a particular topic or subject, thus, is not a simple task, as it seems to be. It involves intensive analysis of legal instruments and judicial pronouncements. Further, there is a constant stream of statutes (with often amendments), statutory rules, directives and orders, and judicial decisions flowing at a tremendous speed in a modern welfare State. 2.6.2 Highlighting inbuilt ‘gaps’ and ‘ambiguities’ No legal language or phrase, howsoever a legal drafter may be vigilant, visionary and skilled craftsman, can be perfect and be capable to take forever into its ambit all the future contingencies and circumstances. Sometimes, a provision may not, in terms of its phraseology or pragmatic operation, aptly fit into overall legislative intent of the Act or match with its other provisions or provisions of other Acts. A legal researcher, through systematic analysis, may be able to highlight these ‘gaps’ and inbuilt weaknesses of the Act or its provisions. 2.6.3 Determining consistency, coherence and stability of law A legal researcher, through critical examination of legal propositions, rules and doctrines embodied therein, in the light of interpretations thereof and legislative policy of the statute, can, with apt analysis and supporting reasoning, exhibit consistency and coherence or otherwise of a given law. Such an analysis helps in the development of law, legal provision or doctrine, as the case may be. 31 2.6.4 Social auditing of law Legal research is also necessary for taking pre-legislative social audit of law as it helps to understand and appreciate the social forces that played significant role in the making of given law in its present form. Such an understanding enables us to know the social stakes that law intends to protect or change and reasons therefor. It helps to appreciate underpinning of the given law and its legislative target and strategy. While post-legislation social auditing helps us to identify ‘gap(s)’, if any, between the ‘legal ideal’ and the ‘social reality’ and to know reasons or factors responsible therefor. Such an audit helps us to find out as to whether a given law is assimilated in the society and is (or is not) serving the needs of the society. It also unravels the reasons or factors that are responsible for making a given law a mere symbolic or a failure in attaining its intended legislative goal(s). It also enables us to predict future of the law. 2.6.5 Suggesting reforms in law In the light of underlying legislative policy of a Statute and the highlighted inbuilt weaknesses or inconsistencies thereof, a legal researcher can easily offer concrete suggestions or proposals for reform or improvement in the given law. By undertaking analytical, historical and comparative research, he can also formulate his proposals for reform in precise terms. Analytical research, as stated above, is concerned with the ascertainment of law. It deals with the present. Historical research, on the other hand, deals with the past and it involves an inquiry into historical antecedents and evolution of law. The past often explains the present, most vividly. It reveals different alternative legislative measures, other than the current ones, thought of when the law was in the making. It discloses the reasons for their rejection and for adoption of the present ones. Historical research often shows that a particular existing legal provision, rule or doctrine, fully justifiable at the time when it was introduced or adapted, is no longer so justifiable because the reasons or circumstances that justified the original inclusion of that provision, rule or doctrine are no longer valid or exist. While comparative research aims at finding parallels from other jurisdictions. Thus, analytical [i.e., finding the existing law]; historical [i.e., finding out the previous law in order to understand the reasons behind the existing law and the course of evolution], and comparative [i.e., finding out what the law is in other countries, and 32 considering whether it can be adapted, with or without modifications] lead to law reforms or development of law. 32 Legal research, to sum up, needs to be carried out for the following reasons: 1. To ascertain laws on a given topic or subject. 2. To identify ‘gaps’ and ‘ambiguities’ in law. 3. To critically examine consistency, coherence and stability of law and legal propositions. 4. To undertake ‘social auditing of law’ [i.e. auditing pre-Legislative ‘forces’ and post-Legislative ‘impacts’ of law]. 5. To suggest reforms/developments in law by undertakings research intended: i. To investigate ‘gap’ between the ‘legal ideals’ and ‘actual practice’. ii. To understand ‘effectiveness’ or ‘impact’ of law in a given social set-up at a given time. iii. To find out as to whether law is serving the needs of the society and has a social value. iv. To make suggestions for improvements in the law on concrete formulations and proposals. v. To predict future trends of law. vi. ? Activity 2.4: 1.What will be the potential importance of each of the research conducted in the papers mentioned above under activity 2.2? Discuss in groups. 2. Discuss the significances of conducting relevant research to :( a) the legislative process in the Federal House of People’s Representatives and Regional Councils or law makers in Ethiopia ; (b)Federal and Regional Courts in the process of rendering effective, efficient and predictable judgments. It is to be discussed in class in the form of examples for importance of legal research in the Ethiopian justice system. _____________________________________________________________________ _____________________________________________________________________ 32 For further details, see P M Bakshi, Legal Research and Law Reform, in S K Verma & M Afzal Wani (eds), Legal Research and Methodology (Indian Law Institute, New Delh i, 2nd edn, 2001) 111. 33 2.7 WHO DOES LEGAL R ES EARCH? Obviously, anyone, who is curious to ‘know’ something about a particular ‘law’ and/or its operational facets and is willing to work hard to ‘know’ or ‘unearth’ it, can be a legal researcher. He may be a sociologist, an historian, a political scientist, a social anthropologist, an economist, or a legal philosopher. But as an occupational exercise, legal research needs to be undertaken by Legislators, Judges, Lawyers, and Legal Academia (law teachers and students). 33 In fact, the nature of professional commitment forces these persons to get themselves indulged into legal research, though for a living, besides improvement of their profession and achieving the purpose of legal research. 2.7.1 By a Legislator Law is not sui generis. Legislators do not legislate at random. They also do not legislate simply because they are authorized or obligated to enact laws. Under normal circumstances, the exercise of legislative power by them is neither ex tempore nor by accident. They enact ‘law’ deliberately to meet one of the prevalent ‘needs’ of the society. A legislative enactment, therefore, has some ‘social purpose’ behind it. Legislators have to decide the areas that are susceptible to legislative treatment. They have also to decide as to whether the proposed legislative measure improves the state of things or the existing social practice. Formulation of a legislative measure, generally, precedes a deliberate ‘finding’ of a ‘problem’ requiring legislative response. Then it follows by ‘finding’ apt possible alternative courses of action to be followed or measures to be taken and a careful comparative assessment of efficacy of each one of the identified alternatives for bringing about the ‘intended’ results through law. Legislators opt for the legislative measure, when, in their wisdom, none of the identified and available alternative measures are either adequate or apt to bring the desired results. Theoretically, then (and only then), the Lawmakers are expected to 33 See, Frederick C Hicks, Materials and Methods of Legal Research (1942, Reprint 1959) 23-31. 34 opt, as an alternative to the identified non- legal measures, for the legal measure as a last resort. Lawmakers, therefore, are expected, as a part of their professional commitment, to make a systematic search for the possible alternatives to the proposed legislative measure and to make a serious and meticulous comparative assessment of efficacy and viability of each one of the identified alternatives for handling the problem. They are also expected to make a cautious assessment of probable ‘social response’ and ‘social consequences’- positive as well as negative- of the proposed legislative measure. Lawmakers may also have to ‘look’ at the ‘identical law’ and its ‘raison d’etre’, if any, prevailing in other countries while designing legislative framework of the proposed law. They may have also to seriously look at the ‘fa ilure’ and/or ‘success’ of such ‘foreign law’ and to identify the factors responsible therefor, if any, so that they can do way with the factors while drafting the law at their hand. This obviously requires them to have, at least, working skill of ‘locating’ and ‘assessing’ of the law from foreign jurisdiction. Such a search will enable them to identify the basic principles, doctrines and legislative strategy adopted in the identical overseas law and thereby to perceive the feasibility of adopting, with necessary modifications, them in the proposed legislation. Similar is the case when they want to amend either the existing legislation or a statutory provision or to repeal it. The collection, collation and weighing of ‘alternatives’ and of ‘information’ abo ut a legal issue or proposed law or amendment, obviously, is a research-exercise. To what extent legislators actually and fruitfully engage themselves in the research-exercise is a different matter. The Legislators’ selection of a particular legal alterna tive may be influenced, rather dictated, by various considerations. A prominent among them would be their: socio- politico-cultural background; perception of the ‘social problem’ and ‘public policy’ involved therein, and attached thereto; attitude and sensitivity to the perceived 35 problem; political or personal vested interests, political strategy; and ideology and commitment to the political party they belong to. 34 Nevertheless, our experience tells that Legislators, in most of the jurisdictions, hardly make any serious efforts to ‘articulate’ either legislative policy or legal framework of the proposed law or of amendments to the existing ones. Majority of the laws are passed on the floor of the House with no or less debate. However, probably keeping in view the pressure on their time and energy as well as their less or no aptitude and skill for undertaking research, a practice of carrying such an inquiry, on behalf of the Legislators, by a (Law) Commission and/or (Ad- hoc) Committee is developed in almost all the modern democratic states. 2.7.2 By a Judge Traditionally, a Judge, who essentially acts as an arbiter, has to find the most relevant rules and principles of law from statutes and statutory instruments argued by the contesting parties, and to apply them to the controversy or lis brought before him. He is expected to ‘find’ propositions and principles of ‘law’ and to decide their ‘propriety’ and ‘applicability’ to the ‘dispute’ at hand. Such an exercise obviously requires him to make a ‘search’ for applicable ‘rule’ and ‘legal principle’. He has also to give ‘reasons’ for picking up a ‘rule’ as an ‘appropriate’ one and logic behind it. An appellate judge, while upholding or reversing a judgment of a court subordinate to him, is also expected to make a search for ‘true’ interpretation of the ‘rule’ applied therein and to change, if necessary, the ‘previous misconstrued rule’ or ‘misinterpretation’ thereof. However, the nature and extent of ‘research’ by a judge depend upon ‘issues’ involved before him and his inclination, aptitude, and training. Similarly, the hierarchical status of the court he sits on, nature of the matter or lis involved, and his workload determine the intensity of the required research. The hierarchical structure of the judicial institutions provides little or no scope for research to a Judge of a trial 34 See, John C Wahlke and Heinz Eulau (eds), Legislative Behavior-A Reader in Theory and Research (Free Press of Glencoe, Illinois, 1959). 36 court or of a court of first instance as the matter brought before him is comparatively trivial in nature and stake of the parties involved therein is not that serious. The research output of an appellate court judge and of a judge of the higher court or an apex court or a constitutional court or Cassation Court is high as the issues brought before him are of legally as well as politically significant. Judges of the higher judicial institutions also have the required aptitude, skill, time, and ability for making such a ‘search’ as well as for supplementing the existing rules and legal principles with their innovative analogy and logical reasoning. A Judge, it is said, injects ‘life’ into ‘law’ through his logical deduction and legal reasoning. Most of the times, as evident from our experience, such reasoning and logical deductions have not only boosted further development of legal rules and principles but have also culminated into some pertinent theories and legal doctrines. A student of law has umpteen number judicial opinions in his memory that not only exhibit high scholarship of the judges but also have led to theories and legal doctrines of far reaching consequences. However, it is significant to recall that a Judge cannot on his own either ascertain law or legal principles or apply them unless someone calls upon him to do so by invoking his jurisdiction. In this sense, he is merely a ‘passive’ legal researcher. 2.7.3 By a Lawyer A practicing lawyer, as profession, has to advise his clients and to plead cases on their behalf in the court of law. He, sometimes, is also required to give legal opinion on the matter referred to him by his client. A legal practitioner, who is called upon to give his legal opinion, is also required, as a part of his profession, to undertake a systematic search for ‘finding’ law and thereby to form his ‘opinion’ based thereon. In order to discharge these professional commitments, a lawyer has obviously to engage himself in searching law, propositions of law, and precedent (if required). However, at times, finding law on a particular topic or issue is not an easy task. A number of statutes and/or statutory provisions on the given topic; frequent amendments thereto; enormous subsidiary legislation in the form of rules, regulations, orders, notifications, or byelaws supplementing the substantive law make the task of finding law more difficult. Pouring judicial pronouncements create further difficulties 37 for the lawyer in his efforts to know law. Further, most of the times, Legislature, advertently or inadvertently, draft law in an imperfect language or couch a legal provision with phraseology that can be subjected to equally convincing more than one interpretation. A lawyer, therefore, has to go into the legislative policy and intent of law for ‘knowing’ the law accurately and identifying and appreciating the underlying legal principles so that he can argue favorably for his client. His client expects him not only to give right advice but also to impress upon the judge and convince him that his legal propositions are sounder than that of his opponent and hence correct. For making his arguments more effective and convincing, he has obviously to explore and expound aims, objects, policy goals, scope and pragmatic aspects of the applicable legal provision(s). He, therefore, needs to scan statutory and judicial material and also materials comprising the history of the legal provision(s). A Practicing Counsel who advises his client to go in appeal against an unfavorable decision of the lower court, in reality, believes that the reasoning given by the lower court was less or no-convincing and was not in tune with the thitherto prevalent legislative policy and judicial interpretation. Therefore, he trusts that his reasoning is better than that of the court below. A scholar, reflecting on the nature of legal research to be carried out by a lawyer as a part of his profession, observed: It is a misconception to think that legal research is only for theoretician or academician and not for lawyer. --- As the attributes of research are fact- finding (that is, what the law is on a particular subject), fact- ordering, fact-systematizing and studying and predicting legal trends, the lawyers are constantly engaged in research. Further, a lawyer has to do research to find as to how the law should be interpreted, since the law is, at times, expressed in ambiguous language and leaves gaps to be filled in, during the process of its application, from case to case, and is not easily knowable. Perhaps in the days gone by when the economic life was simple, laws were not too many, and the life of the individual was not so much regulated by the state, all this resulting in 38  the ascendancy of private law controversies (as contrasted with public law controversies), a lawyer could manage by the knowledge of a few professional tools, (which he was ordinarily expected to know) and did not need much research to win a case for his client. But all this has changed now. Firstly, there are too many statutes on a particular subject with frequent amendments thereto. --- Secondly, apart from the statutes, rules and statutory orders are much more in bulk and quantity. The latter are equally, and sometimes more, important than the relevant statute itself. --- Thirdly, the case law is also becoming prolific ---. Fourthly, in many areas of government regulation of private enterprises and in constitutional and administrative law questions, where our law is still in the developing stages, a lawyer is required to do research in comparative law to comprehend the meaning of the words and to interpret them. Fifthly, many questions in the present complex of socio-economic life, ---, raise difficult policy questions and a lawyer is required to traverse beyond legal doctrines and propositions. 35 However, unfortunately most of the practicing lawyers lack the ability, aptitude and inclination for such a painstaking legal research. Probably, the nature of cases they handle are of routine nature and do not warrant such a serious legal research. Nevertheless, role of a lawyer as a researcher, compared with an academician, in legal research is limited. He undertakes legal research only when a client approaches to him. His research is also coloured by the need to win the case at hand. He, therefore, lacks a wider perspective, objectivity and ability to draw a line on the graph depicting the development of the law and to make predictions about law in his professional career. Nevertheless, his well- matched intellectual acumen, policy-orientation, and social awareness may, undoubtedly, result (an often results) in articulating and advancing superb arguments. It certainly leads to the development of law. 35 S N Jain, Legal Research and Methodology, supra n 15, at pp 487-488. 39 2.7.4 By a Law Teacher and Student of Law Legal research is indispensable for legal academia (law teachers and students). They are required to undertake legal research as a part of their professional commitment. There is a close connection between teaching law and legal research. 36 Legal research by a teacher equips him to develop and design a course he is required to administer to his students. He has to have an over-all idea of the subject as well as detailed knowledge of the topics included in the course-outline before he designs his course. Such knowledge, which obviously comes from research, makes him capable of formulating his ideas in a systematic and comprehensible manner in the course outline. Further, a law teacher has to keep a vigilant track of ‘developments’ in the ‘law’ for making his lectures and deliberations in the class-room contextually and contemporarily relevant. He has also to make himself familiar with the ‘legislative intent and policy’ of the ‘black- letter rules’ [i.e. rules- in-the law book(s)] and their ‘raison d'etre’ so that he can help his students to appreciate the ‘rule(s)’ in a systematic and comprehensive manner. Such an intensive peep into the legislative intent and policy of a rule will also induce him and his students to have a critical assessment of the rule as well as of its desirability in the statute book. It will also help him and his students to ‘think’ and ‘formulate’ an alternative rule, if the existing one, in their opinion, is unwarranted, undesirable or ineffective. It may trigger off some ‘new approaches’ to the law or ‘original ideas’ about a specific rule or legal principle. A law teacher is also expected to inculcate a degree of legal craftsmanship in his students and to help them realize the potential of law as a tool of social engineering, social change and an instrument of social control. Research, thus, becomes inevitable for a law teacher to effectively perform his following roles: 1. To enhance his knowledge in the given subject and thereby to design a course assigned to him and to make his class-room delivery and deliberations in tune 36 See, J C Thomas, A Modest Programme for the Improvement of Law Teaching, 9 Victoria Uni Wellington L Rev 405 (1978), E P Ellinger & K J Keith, Legal Research: Techniques and Ideas, 10 Victoria Uni Wellington L Rev 1 (1979-1980), and Hurst, Research Responsibilities of University Law Schools, 10 Jr of Legal Edu 147 (1957). 40  with the current and emerging trends, more informative, illuminating, effective, and contextually relevant and thereby to earn professional respectability as a good teacher. 2. To expose his students to a critical posture towards the role of law in the society. 3. To help them realize the role of law in social engineering. 4. To inculcate a high degree of ‘legal craftsmanship’ in his students. 5. To inspire his students to be engaged in legal research. 6. To help internalization of the notion of the rule of law. 7. Most of the modern Law Schools and Law Universities, that have predominantly designed their curricula on the patterns of American and British Law Schools, require their students to undertake original research as one of the pre-requisites for obtaining their degree - LL.B., LL.B. (Honours) and/or LL.M. The students’ research, as a mandatory component of a course/degree, may take either of the following forms: 1. A or two seminar papers, on a selected or pre-assigned topic, for each seminar subject [for LL.B. and/or LL.B. (Honors)]. 2. A (senior) thesis on a selected or pre-assigned topic [for LL.B.]. 3. A comprehensive piece of legal writing [for LL.B. (Hons)]. 4. A group research assignment (in the form of a mini- thesis) on a current legal problem [for LL.B.]. 5. A or two comprehensive legal essays on contemporary issues, selected or assigned, for each subject [for LL.M.]. 6. A or a set of research papers of high quality or a dissertation in lieu of the examination in an LL.M. subject. 7. A thesis of high quality in lieu of the LL.M. examination [for LL.M. through Research]. 8. A Masters’ Thesis (or a dissertation) in the second year/fourth semester (of the course) [for LL.M.]. A law student aspiring for a degree (LL.B. /LL.M.) from a reputed Law School has, therefore, no alternative except to undertake and pursue the required research component to the satisfaction of his supervisor(s) and/or the Board of Examiners. 41 In fact, modern University Law Schools and Law Colleges, which are engaged in the making of future generation of legal professionals and practicing as well as academic lawyers (and in turn prosecutors and judges), are ideally required not only to be centers of legal education but also centers of legal scholarship and research. These institutions are required to inculcate in their students some habit of legal writing and research. The Canadian Committee on Legal Research, emphasizing the role of law schools/colleges in legal research, observed: A law school is not only a teaching institution. It is, or should be, a research center of its own. It should possess a corps of advanced students-Professors-who themselves are engaged in personal research, and from whom will come a stream of books, articles and studies to enrich our legal literature. --- ‘A university law school has two purposes, (1) to train men for the legal profession; (2) to provide a center where scholars may contribute to an understanding of law and government and may participate creatively in their growth and improvement. 37 However, as mentioned earlier, the role of a Legislator, a Lawyer and a Judge as a legal researcher is limited. Generally, they get themselves involved in legal research only to fulfill their professional responsibilities. Their research, therefore, ends when they accomplish their professional commitments. In other words, a Legislator deliberates on the proposed law (or an amendment thereto) when circumstances warrant him to stipulate a legislative measure to tackle the prevailing social problem. A Lawyer gets involved in legal research to sharpen his arguments and thereby to win a case at hand. He, therefore, ceases to be a legal researcher when his case is disposed off by a Court. Similarly, a Judge starts an inquiry into legal rules or doctrines that are apt to solve the issues involved in the case at hand. Similar is the case of an Appellate Judge when he is called upon a litigant to reconsider the unfavorable judicial dictum of the lower court. The moment he disposes off the case at hand, he hardly pursues his inquiry into the legal principles or rules involved therein. 37 Canadian Co mmittee on Legal Research, 34 Can Bar Rev 1022-23 (1956). 42 Therefore, legal academia has comparatively better aptitude and reasons for undertaking legal research. In fact, it has been engaged in producing works, like commentaries and case digests that are designed for practitioners’ reference. However, it is important to note at this juncture that embarking on legal research by legal academia requires three basic conditions. First, it should have an access to a law library holding a good number of reference books (with latest editions) and legal periodicals published at home and abroad. Undoubtedly, library is the laboratory for a legal researcher to investigate the legal problem(s) at hand. Secondly, the academia has to have some aptitude and requisite skill to get involved in a meaningful legal research. Thirdly, it should also have some leisure time at its disposal for getting indulged into intensive legal research. In this context, it is worth to reca ll here the following observation of the Canadian Committee on Legal Research. It observed: A good school is built round the course of full-time, well-trained teachers dedicated to work and sufficiently relieved from drudgery to be free to think and write, and to give individual attention to their students. This means that the teaching load must reasonably be low and the salary sufficiently high, to attract the best minds. 38 A scholar of law, having the requisite aptitude and skill, interested in legal re search, may do any of the following five things:39 1. Write a historical essay showing the development in a field of law or a particular doctrine. 2. Analyze a legal doctrine, rule, principle or concept to see whether it matches with the thitherto judicial statements and to suggest new set of statements or words if the existing ones, in his opinion, do not match. While doing so, he can highlight ambiguities in the doctrine or gaps prevalent therein and state, with rationale and reasons, what are the correct propositions of law that need to apply. For suggesting correct propositions, he may rely upon the underlying policy of the doctrine, rule, principle or concept. 38 The report is published in, 34 Can Bar Rev 999 (1956). The quotation appears on pp 1022-1023. 39 George D Braden, Legal Research: A Variat ion on an Old Lament, supra n 6. 43  3. Write a kind of survey on the recent developments in law summarizing the most important cases, analyzing how they have followed, or deviated from, the past cases, and make a guess as to what the courts would do in future. 4. Write about ‘what I believe in’. This is usually a matter of deploring a trend, legislative or judicial. 5. Write about ‘relationship’ between the ‘law’ and the ‘world’ i.e. other behavioral sciences. 6. For any of the first three, one needs only a (good) law library. For the fourth, one does not event need that. But the last requires not only a good law library but also a good deal of non- legal facts. Therefore, these five options available to a legal scholar can be divided into two broad categories of legal research, namely, doctrinal legal research and non-doctrinal regal research. Doctrinal legal research gives emphasis on analysis of legal rules, principles or doctrines while non-doctrinal legal research gives prominence to relationship of law with people, social values and/or social institutions. It endeavors to see the relationship between law and other behavioral sciences and social facts. It involves empirical inquiry into the operation of law. Doctrinal legal research is, therefore, ‘research in law’ or ‘research in black- letter of law’ while, non- doctrinal legal research is ‘research about law’ or ‘socio- legal research’. 40 2.8 LEGAL R ESEARCH AND M ETHODOLOGY Law, as mentioned earlier, can be perceived as a normative science as it sets norms of human behavior. Most of the times, it also plays a role of catalyst for bringing socio- economic change. It is a means to an end. A systematic investigation of the first dimension of law (as a normative science), generally, falls in the domain of legal academia. A scholar of law, generally, undertakes a rigorous systematic analysis, exposition and critical evaluation of legal rule, legal principle, legal concept or doctrine (i.e. legal fact). Based on this analysis, he may highlight conceptual basis of the legal rule, principle or doctrine and may forward some proposals for reforms. He need not go beyond the discipline of law. While inq uiry into social dimension of law or societal role of law, traditionally, falls in the domain of sociologists as it, 40 For further details, see ‘Unit 3: Doctrinal and Non-doctrinal Legal Research’, infra. 44 invariably, involves a systematic look at, or discovery of, functional aspect of law and/or ‘behavioral pattern’ of an individual or a social group in response to ‘law’. A sociologist intends to explain the way law functions and/or to evaluate its role in bringing out the desired changes. Undoubtedly, both the discoveries require ‘systematic’ study of, and approach to, ‘fact’, legal or social as the case may be, following a well-set ‘methodology’. Hitherto, however, in the Law Schools’ orientation in research methodology has been aimed at familiarization of law students with researching of legal materials-Acts of Parliament/Statutes/Proclamations, decisions of (higher) Courts, (case) digests, writings of legal scholars, indexes, rules of interpretation of statutes, and the art of distinguishing and finding the ratio decidendi of a case (predominantly in common law jurisdictions). In other words, Law Schools, hitherto, has been giving emphasis on analytical legal research. Legal scholars, therefore, have not been able to evolve any specific methodology of their own for carrying out legal research. They do not have well-articulated research methods to employ and research methodology to follow in legal research. Sociologists, on the other hand, have developed and inherited a comparatively well developed research methods and methodology for systematic investigation of social fact or behavior. They have been engaged in discovering, verifying or testing the old social facts or discovering new ones; analyzing sequence of these facts, finding their relationships and causal explanations, and developing new scientific concepts and theories about human behavior. For accomplishing these tasks, social scientists have developed research tools of various kinds (such as observational techniques, interviews and questionnaire, and case studies). They have a well-developed research methodology covering all major processes of research, namely, identification of a problem; formulation of a workable hypothesis (or hypotheses); preparing research design; collection of data (through interview, questionnaire, schedule or observation); processing, analyzing and interpretation of data, and writing research report. Some sociologists have successfully employed (and have been employing) these well- developed research methods and methodology to ‘understand’ social dimension or 45 role of law, as ‘law’ has been perceived as ‘means’ (and not ‘end’) of social change, social control or social engineering. Legal scholars, interested in having insight into policy of law its implementation or ‘understanding’ ‘social dimension’ or role of law, in the absence of their own well- developed legal research methodology, have to place their reliance on the social science techniques of data collection (such as interview, questionnaire, schedule or observation) and research methodology. Ultimately, this approach of legal researchers has led to the evolution of a sort of ‘hybrid’ legal research methodology having a blend of (traditional) analytical (legal) research and empirical (social) research. A legal researcher, therefore, needs to identify and understand the distinct characteristics of his legal research for employing an ‘appropriate’ research methodology. He has to understand the extent to which his research problem shares the characteristics of social sciences, and the extent to which it is distinctive. If the research problem is a part of, and on par with, social sciences, the legal researcher has obviously to use and apply the methodology known to social sciences. And if it has its own distinct characteristics, he has to use different methodology. In other words, if his ‘discovery’ involves rigorous analysis and creative synthesis of different legal doctrines, concepts or principles, and evaluation of legal doctrines or law, or extraction of some legal principles from given plethora of legal materials, he has to resort to a methodology dominant with analytical skills and blended with deduction and induction of such an analysis. If his ‘discovery’, on the other hand, involves the study of legal institutions or processes of the law, which ostensibly warrant empirical observation of human behavior, he has to use the methodology known to social sciences. 2.9 SOURCES OF INFORMATION The various sources of information may be categorized into primary, secondary or tertiary. 2.9.1 Primary sources 46 The sources that contain original information and observations are known as primary sources of information. Such information can be collected directly from the persons having such information or can be found in research papers published in legal periodicals/ journals, reports, theses and conference papers. Legal periodicals and journals are indispensable sources of information for a legal researcher. They contain wealth of the first hand and in-depth information on a particular point. Reports, published by Governmental or non- governmental agencies, also contain rich information on the subject of inquiry. Doctoral dissertations (theses leading to Ph D Degree), which offer very systematic and in-depth analysis of the subject- matter/aspect delved therein and the conclusions/opinions/suggestions based on the analysis, constitute another primary source of information. Similar is the case of conference papers. Primary sources in legal research, therefore, are the Constitution, National Gazette, which publish Acts/Proclamations passed by Parliament (and by State Legislature),41 Rules, Regulations, Statutory Orders, and Directives of Administrative Agencies, and case reports that publish judicial pronouncements of different higher courts. All these sources contain rich original information/observations about the identified research problem. They are indeed indispensable for any legal researcher. 2.9.2 Secondary sources Secondary sources of information furnish the information derived from primary sources. These sources organize the information in a systematic manner and in a 41 So metimes, a researcher may find subject-wise comp ilations of Statutes/Proclamat ions. Before he scans National Gazette, he should make an effort to find publications compiling Statutes/ Proclamat ions in his library. These publications save his time and energy in locating the required statutes. However, before he relies upon them, he has to check for leg islative instruments amending/supplementing/repealing, if any, entered into force subsequent to the publication of the compilation. The present author has found a few volumes of compilations of laws of Ethiopia published by the Faculty of Law o f the Haile Sellassie 1 University (now Addis Ababa University). See, Facu lty of Law, Haile Sellassie 1 Un iversity, Consolidated Laws of Ethiopia (Artistic Printers, Addis Ababa, 1972). The laws included in these volumes are most intelligently organized. However, the series is discontinued after bringing out five volu mes. Blackstone Publishers bring out subject-wise consolidation of Brit ish statutes. 47 planned way. These secondary sources include textbooks, treatises, commentaries on statutes, abstracts, bibliographies, dictionaries, encyclopedias, indexes, reviews, and thesauri.Textbooks, legal treatises, and commentaries on statutes constitute significant secondary sources of legal research. Textbooks and legal treatises offer a researcher proper idea of the subject and enable him to find several other useful sources of information on the topic of his research. They also help him in comprehending basic principles of, and judicial statements on, the topic under inquiry. Abstracts are brief statements of the contents of research articles published in periodicals and/or anthologies, without appraisal. Abstracts provide a simplified key to find relevant studies from the vast literature on the subject. Bibliographies list books and related materials on a particular subject. They contain the author’s name, title, place of publication, publisher and the year of publication. An annotated bibliography provides a brief analysis of the contents. Dictionary contains an alphabetical listing of words with their meaning, spelling, pronunciation, derivation and grammatical usage. However, with the growth of knowledge, it has not been possible for general language dictionaries to keep up with technical terms developed in the various fields. So the need for subject specific dictionaries arose. A legal researcher, therefore, can find a couple of legal dictionaries 42 of worth consulting. The most frequently referred to, and widely used, is Black’s Law Dictionary. 43 Encyclopedia is a book of information in the form of condensed articles on every subject. It furnishes greater details (of the subjects dealt thereunder) than a dictionary. It provides meaning and historical background of concepts, important theories, names and references of major works. Encyclopedia is thus the treasure house of knowledge 42 For examp le see, Bryan A Garner, A Dictionary of Modern Legal Usage (Oxfo rd, New York, 2nd edn, 1995), Steven H Gifis, Barron’s Dictionary of Legal Terms (Barroni Educational Service, Inc, New Yo rk, 3rd edn, 1998), James R Fo x, Dictionary of International and Comparative Law (Oceana Publication, Inc, 3rd edn, 2003), and L B Cu rzon, Dictionary of Law (Pearson/Longman, UK, 6th edn, 2002). 43 Henry Campbell Black, Black’s Law Dictionary (St Paul, Minn. West Publishing Co., USA, 6th edn, 1990) and Bryan A Garner, Black’s Law Dictionary (St Paul, Minn. West Publishing Co., USA, 7th edn, 1990). 48 on various subjects, including law. There are a number of encyclopedias that may be, depending upon his subject of inquiry, of great use to a legal researcher. 44 Indexes are alphabetical listing of subjects and/or authors of the literature included therein. According to William A Katz, ‘Index’ is a detailed list of names, terms, subjects, places or other significant items in a complete work with exact page or other reference to material included in the work.’ 45 Harold Borko and Charles L Bernier have explained it more lucidly and comprehensively. According to them, the artificiality created by the indexing system is a mental process for quick retrieval of information. In their words, ‘indexing is the process of analyzing the informational content of records of knowledge and expressing the informational content in language of the indexing system.’ 46 Index, thus, helps to quickly recall or retrieve most relevant information and thereby to establish a contact between producer of idea or information (i.e. author) and consumer of information (i.e. reader) through organizer of information (i.e. indexer/librarian). It not only helps the reader to locate the required information immediately but also facilitates the identification or selection of the desired documents and provides comprehensive overview of the subject. 47 44 Widely used legal encyclopedia are Halsbury’s Statutes of England and Wales (a mu lti-volu me publication of Butterworths, London) and Halsbury’s Laws o f England (published by Butterworths, London, in a series of volu mes), which g ive detailed and up -do-date account of statutes and of law on a particular subject. A legal researcher’s task of locating these statutes and cases is further made easy by Consolidated Table of Statutory Instruments 2006, Consolidated Table of Cases 2005, and Halsbury’s Statutes Citor 2005. Other useful encyclopedias are: ‘An Encyclopedia of Definitions and Interpretations of Legally Significant Words and Phrases’ (published by St Paul, Minn. West Publishing Co, USA), Words and Phrases (a multi-volu me series, which gives an judicial constructions, definitions of words and phrases by the State and Federal Courts fro m 1658 to date, is published by St Paul, Minn. West Publishing Co., USA), International Encyclopedia of Laws (a loos