Annotation: Due to the special role of Law as a scientific discipline, this entry will focus more on legal research as a whole as opposed to one specific method.
In short: Legal Research subsumes different approaches to understand and interpret legal documents and/or cases.
The field of Law has a long-standing history. "Roman legal doctrine developed since the second century before Christ, and reached a very high level as from the third century after Christ. Its rediscovery and renewed study in Bologna in the eleventh century was the start for the creation of universities." (van Hoecke 2011, p.1). The emergence of Law and its eventual institutionalisation as a scientific discipline was fundamentally based on the reading and interpretation of (Roman) legal documents (2). "During the whole of the Middle-Ages, legal doctrine was highly thought of and considered as a 'scientific discipline', as in those times 'authoritative interpretation', not 'empirical research', was the main criterion for the scientific status of a discipline." (van Hoecke 2011, p.1). The discipline subsequently spread from the first universities in Italy throughout Europe (2). In this time, legal work was mostly restricted to each national context due to the differences in the respective legal systems (2). This early approach to Law as a scientific discipline represents the so-called 'doctrinal approach' which is still the most common understanding of legal work (see What the method does).
However, a second approach developed from the 17th Century on, but mainly from the 19th Century until today. With the rise of positivism - which implies that the only valid knowledge arises from scientific inquiry and falsification of scientific theory -, a new understanding of science emerged. Here, the use of empirical data, the testing of hypotheses and the development of theories, independent from geographical limitations, became the new scientific ideal. In consequence, Law as a scientific discipline changed (van Hoecke 2011, p.1). The research focus in Law partly shifted, both in terms of research questions and methodology: "[i]n the 1960s and 1970s, legal realists and socio-legal scholars started the law and society movement, and pointed to the importance of understanding the gap between 'law in books' and 'law in action', and the operation of law in society. They were interested in examining the legal system in terms of whether legal reform brings about beneficial social effects and protects the interests of the public. Similarly, in the 1980s critical legal studies integrated ideas and methods found in disciplines such as sociology, anthropology and literary theory." (McConville & Chui 2007, p.5). With Law being a discipline between the Sciences and the Humanities, this new movement borrowed heavily from the Social Sciences in terms of methodology. New adjacent disciplines emerged, including legal sociology, legal psychology and law and economics, among others (2, 5). This 'Law in context' - also called 'socio-legal' - approach includes new topics and methodological directions with a stronger focus on empirical research and theory building and has been universally taken up in academic institutions.
From this contextualized approach to Law, research emerged on the relationship between Law and Society and questions of power relations, more specificially on aspects such as gender, social class, ethnicity and religion (5). 'Socio-legal research' may be seen as an alternative or a supplement, but not necessarily as a substitute to traditional legal analysis (2, 5). The openness towards a contextualization of Law acknowledges the fact that Law is influenced by thoughts and discourses from other disciplines such as sociology, economics, political science, history and psychology (4, 7). In addition, "understanding of the modern patent law, environmental law, and information technology law presupposes adequate study of biotechnology, ecology, and information technology." (4, p.18). New approaches to and combinations of methods have emerged and continue to develop. The common 'doctrinal' approach to legal research, i.e. collecting, reading and interpreting (legal) texts, is increasingly scrutinized as the primary methodological approach (2, 3). According to critics, legal publications and teaching in academic institutions do not sufficiently reflect upon the methodological approaches of traditional legal research (2, 5). This critique stems from a comparison to other established disciplines in the (Social) Sciences which have been using a diverse set of defined methodological approaches for decades (2). It has also emerged in view of fundamental changes in academia in the last decades, notably in terms of methodological advancements and trends of internationalisation (2).
What the method does
Generally, legal research aims at understanding the law and the legal order. The methodological approach can be seen as concentring circles: the smallest circle is about understanding a particular provision, then this provision within the respective legal order (i.e. national legal order, European legal order), then within the specific societal context, then within the world. As explained before, there are different approaches to this: 'Doctrinal' research views Law on a theoretical basis and as a self-sustaining set of principles that are accessible through (legal) texts. This represents the approach by Kelsen (6), according to whom legal research is not about the process behind or content of Law, but rather about its structure, independent from any context. 'Socio-legal' research, by comparison, predominantly revolves around Law as a social phenomenon with its social, economic and political implications which the researcher often attempts to analyze using empirical methods in an interdisciplinary manner (4; 5, see Background). While the majority of academic publications and practical work in Law falls under the first category, the second type has significantly gained traction in academic discourse during the last decades (5c, see Background). Both approaches may be pursued for different purposes: to understand and describe the current system, to explain causes and effects or explore new ideas, to aim for reforms and improvements, to find practical solutions to existent problems and to provide foresight into future scenarios (4).
Classical doctrinal legal research
Traditional legal research is often embedded in a specific case study with a certain problem concerning legal norm, policy, institutions or systems (4). The research aims to bring out the problem's background and functioning, assess the underlying principles' outcome and efficacy and suggest reforms or solutions to legal decision-makers answer the problem (4, 7). The results of the analysis may offer solutions to individual legal conflicts or serve as reference points for future decisions and further the development of legislation (2). This type of 'research' must not be seen in the purely academic sense of 'research', but also represents the classical process in practical Law (e.g. for judges). In this regard, Rubin (1997) distinguishes academic and non-academic legal work in that the former often ends with prescriptions for policy-makers, while the latter focuses predominantly on solving legal conflicts (7).
The research process entails
- locating the source of law in primary (legal and sub-legal) as well as secondary texts (e.g. journal articles or commentaries on legislation) and collecting these documents,
- systematically interpreting, analyzing and clarifying the texts (also by contrasting texts and considering comparable cases) and
- finding a conclusive synthesis and infering general principles to answer a legal question or problem (1, 2, 4).
Independent from the sphere of application, the research process is predominantly text-based, focuses on theoretical discussions of the legal text itself, and takes the societal context of the legal problem only into consideration for the purpose of understanding the object and purpose of the Law (5). Overall, this classical method of legal analysis is comparable to Hermeneutics: Legal scholars read text in detail and argue about diverging interpretations (3). The basic procedure to this end is based on syllogisms: If A is B, and A is C, then B must be C. This is based on Sokrates, and when applied to law (normative syllogism after David Hume), it means that:
- the Law prescribes "If element(s) of the norm A happen(s), legal consequence(s) B must follow",
- legal scholars analyze whether their real-life situation C is what the element of the norm A entails,
- and if it is, the legal consequence(s) B must follow.
Let us take the example of §17 Animal welfare act: "Anyone killing a vertebrate without a reasonable ground shall be punished with up to three years imprisonment or a fine".
- The A - the elements of the norm - would be "anyone killing a vertebrate without a reasonable ground". Actually, there are four elements here: The "anyone", the "killing, the "vertebrate", and the "without a reasonable ground". All of these elements will need to be considered when assessing whether the situation C fulfills A.
- If it does, B - the legal consequence - would be "shall be punished with up to three years imprisonment or a fine".
- Now, we look at our case C - let's say, a man kills a cow with a knife. It is rather straightforward to see that the "anyone" and the "vertebrate" are fulfilled. The "killing" might be a matter of debate, but if it is clear that the man actively caused the cow's death by using the knife, this is also quite clear. But the "without a reasonable ground" is a matter of interpretation. The legal scholar needs to give meaning to this element so that they are able to decide whether it is fulfilled.
In order to give meaning to "reasonable ground", legal research typically uses four different methods of interpretation:
- the actual meaning of individual legal terms (grammatical interpretation);
- the historical background of the text (historical interpretation)
- the systemic position of the legal provision, for example when several adjacent laws have to be seen in connection to make sense of each (systematic interpretation);
- and the object and purpose of the text (object and purpose interpretation)
Further, the interpretation of the documents is supported argumentatively; the analysed laws are explained by the existence of a higher norm or general principle based on real-world contexts; the texts can be analyzed axiomatically and logically and there are normative elements in understanding the underlying norms of the law as well as normative positions to take during their interpretation (3).
So let us apply these four main steps to our example of "reasonable ground":
- a grammatical interpretation would translate it as a sensible or acceptable reason for acting,
- a systematic interpretation would show that other adjacent laws further define what is unreasonable behavior towards animals, which makes it clearer what is "reasonable",
- a historical interpretation would highlight that there has been increasingly more attention towards the rights and protection of living creatures, and therefore increasingly narrow margins for "reasonable killing", and
- the object and purpose of the law state that there are circumstances under which humans need to kill vertebrates (e.g. for food production), and others where they don't need to.
As we can see, these four steps do not point to one clear definition of what is a "reasonable ground". So the situation can be analyzed in light of a higher law. This happened in Germany when it was discussed whether male chicks should be allowed to be killed during the production of chickens. The German Federal Constitutional Court stated that the economic purpose of killing male chicks does not (anymore) outweigh the responsibility towards animal life, so it was banned.
As this description of the classical legal research process shows, there is indeed a distinct methodology to classical Law (4). It is based on the adoption of methods from the Humanities (historical, analytical and philosophical methods) and generally from the Social Sciences - as Dobinson and Johns (5b) highlight: the identification and collection of relevant documents in law can be seen as "analogous to a social science literature review" (p.22). Traditional legal research also entails theory- and hypothesis-building. As Van Hoecke (3) states: "Legal scholars collect empirical data (statutes, cases etc.), word hypotheses on their meaning and scope, which they test, using the classic canons of interpretation. In the next stage, they build theories (...) which they test and from which they derive new hypotheses." (p.11). Also, "[t]he level of systematisation and concept building is the level of theory building in legal doctrine." (p.17). However, the prescriptive element of legal scholarship - the suggestion of iterations and guidance for policy-makers - differentiates it from the aforementioned disciplines which mostly engage in descriptive accounts of the world (7).
An interesting notion is the question of how 'empirical' legal research is understood. While several scholars imply the usage of 'empirical' data, they most commonly refer to the legal and non-legal documents that are gathered, compared and analysed for a specific case (see e.g. (3)). Methods of social science field research, such as interviews, are acknowledged, but are admitted to play a minor role in the gathering of data (3). Because of this, Dobinson and Johns (2007) highlight that 'doctrinal' legal research is neither quantitative or qualitative, since it does not apply classical empirical methods. However, they declare that "(...) such research is a process of selecting and weighing materials taking into account hierarchy and authority as well as understanding social context and interpretation" (Dobinson & Johns 2007, p.40). Because of this, they still frame doctrinal legal research as a qualitative method. Thus, from a methodological perspective, it may be categorized as a form of data gathering as well as analysis, as qualitative and as both inductive (when focusing on wording as well as object and purpose of the text) and deductive (when analysing systematics and historical background) with regards to the process of document analysis.
The 'doctrinal' approach to legal research has been critized (see Background). As Van Hoecke (3) puts it: "(...) it is often too descriptive, too autopoietic, without taking the context of the law sufficiently into account; it lacks a clear methodology and the methods of legal doctrine seem to be identical to those of legal practice; it is too parochial, limited to very small scientific communities, because of specialisation and geographical limits; there is not much difference between publications of legal practitioners and of legal scholars." (p.2). The 'socio-legal' approach may be seen as an answer to this critique.
Socio-legal research attempts to broaden the picture of the legal situation and takes into consideration factors and data other than legal and sub-legal documents exclusively. The sociological, historical, economic, geographical and/or cultural context of legislation is acknowledged and data is gathered empirically on these elements in order to better understand the underlying issues. Qualitative and quantitative methods of empirical data collection include observation, questionnaires, content analysis, interviews, surveys, experiments and others (5b, 5c). Qualitative methods can help contextualize the subsequent quantitative analysis of the gathered data. The final selection of methods is dependent on the research questions, aims and contexts (2, 4). Like the 'doctrinal' approach, the research may still happen under the umbrella of a case study, where all methods of inquiry and analysis focus on one particular situation (1). Socio-legal research may serve the same goals as classical legal research (improving legislation, suggesting solutions), but is generally more interested in understanding the impact of the legal system on society.
Strengths & Challenges
- Especially in 'doctrinal' legal research, there is a fine line between practical and academic work on legal issues which are similar in many aspects. However, scientific work in Law is generally more complex (3, 4). Academics want to understand through a comprehensive analysis and conclusion why the law exists and how it works in different (national) contexts in order to provide prescriptive guidance (7), often for the purpose of publication. By comparison, practitioners focus on what the Law is in the given context for the purpose of finding immediate solutions for their clients (4). The term 'legal research' applies to both groups, but the differences are crucial for the methodological discussion.
- The international differences in legal systems make it difficult to develop an internationally accepted consensus on theories, terms and approaches (3). At the same time, international jurisdictional instruments such as Conventions more strongly influence national systems. Both insights may highlight the need of a more homogenous, international approach to Law (5).
- McConville & Chui (2007) declared a trend in legal training towards empirical research in legal work: "Law students are now more research-based than ever before, and research is an integral part of the undergraduate curriculum, no longer the preserve of postgraduate students. This means, at the least, that legal research and scholarship is much more pervasive, complex and demanding than ever before and those engaging in research have more possible pathways to travel and require a greater range of skills and competences than their law-focused predecessors." (McConville & Chui 2007, p.2). This demand meets with the aforementioned lack of reflexive debate about legal methodology, which raises questions for the future of teaching in Law.
- As described above, the basic interpretation of legal documents may be expanded by further empirical methods to gather additional contextual data, especially in 'socio-legal' research.
Everything normative to this method
- Maybe the overall challenge with Law as a "created" object by any given society at the time, which is in and of itself liquid, changing and changeable, is that a scientific approach that could be inferred from the object itself is lacking. Law is a social construct and serves society: it is "(...) a product of conscious decision by decision-makers (...) in bold terms, law is created not discovered." (Rubin 1997, p.525). Law and traditional legal methodology are inherently prescriptive instead of descriptive, which makes them strongly normative (7).
- It has thus been claimed that the acknowledgement of socio-ecological, socio-technical, cultural and political developments should be furthered in the field of Law (see (3), Background). Socio-legal researchers argue that "[a] precondition for legal research in any form has become that the researcher should not only have knowledge about the traditional elements of the law, but also about the quickly changing societal, political, economic and technological contexts and, possibly, other aspects of relevance." (Langbroek et al. 2017, p.1). This claim supports the socio-legal research approach, but raises new issues since it highlights the blurred lines between Law as a scientific discipline and Law as a political object that is influenced by the societal context (see (6)).
- The question of objectivity is raised especially when considering the different purposes of classical legal research. When the goal of research is to find solutions for a client, the analysis process is influenced by the client's ambition. As Dobinson and Johns (5b) highlight: "Epstein and King contrast the approach of a lawyer and a science PhD where the lawyer is encouraged to research from the perspective of the client whereas the science PhD has to acknowledge contrary positions. 'An attorney who treats a client like a hypothesis would be disbarred; a PhD who advocates a hypothesis like a client would be ignored'." (Dobinson & Johns 2007, p.22)
- The predominant lack of empirical methods, especially in traditional legal research, imposes a challenge in terms of quality criteria. Objectivity is difficult to achieve due to the interpretative nature of the analytical process of legal documents as well as a lack of clear definitions of core terms (2, 3). Dobinson & Johns (2007) claim there there is no 'objective truth' for Law outside of the legal documents, which is why - as with qualitative analysis in general - the validity and objectivity of the analysis depend on the rigour of the applied analysis methods (5b). This uncertainty in terms of quality criteria also complicates the review process for publications (2).
- According to Langbroek et al (2017), there are two lines of development for the methodological debate in Law: a) exchange between scholars in Law and social sciences on normative and methodological approaches and b) an ongoing debate between traditional academic lawyers and legal researchers on the methods used for legal analysis and research. "(...) [W]hat to date has been seen as 'traditional legal methodology' will show itself as not having been self-evident at all." (p.3)
- Zippelius, R. Juristische Methodenlehre (11. Auflage, Beck 2012)
- Rubin, E.L. 1997. Law and and the Methodology of Law. Wisconsin Law Review 3. 521-566. HeinOnline.
(1) Webley, L. 2016. Stumbling Blocks in Empirical Legal Research. Case Study Research. Law and Method xx(x). 1-21. Available at (http://www.lawandmethod.nl/tijdschrift/lawandmethod/2016/10/lawandmethod-D-15-00007)
(2) Langbroek, P. van den Box, K. Thomas, M.S. Milo, M. van Rossum, W. 2017. Methodology of Legal Research: Challenges and Opportunities. Utrecht Law Review 13(3).
(3) Van Hoecke, M. Legal Doctrine: Which Method(s) for What Kind of Discipline? In: Van Hoecke, M. (ed) 2011. Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Bloomsbury Publishing. 1-18.
(4) Bhat, P.I. 2019. Idea and Methods of Legal Research. Part I: General. Oxford University Press.
(5) McConville, M. Chui, W.H. Introduction and Overview. In: McConville, M. Chui, W.H. (eds) 2007. Research Methods For Law. Edinburgh University Press. 1-15.
(5b) Dobinson, I. Johns, F. Qualitative Legal Research. In: McConville, M. Chui, W.H. (eds) 2007. Research Methods For Law. Edinburgh University Press. 16-47.
(5c) Chui, W.H. Quantitative Legal Research. In: McConville, M. Chui, W.H. (eds) 2007. Research Methods For Law. Edinburgh University Press. 48-71.
(6) Kley, A. Tophinke, E. 2001. Hans Kelsen und die Reine Rechtslehre. Juristische Arbeitsblätter Heft 2. 169-174.
(7) Rubin, E.L. 1997. Law and and the Methodology of Law. Wisconsin Law Review 3. 521-566. HeinOnline.
The author of this entry is Christopher Franz.