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Doctrinal and social legal research (Essay Sample)


The assignment entailed research on two main research techniques used in law. The task required the student to utilize OSCOLA referencing in presenting the differences between Doctrinal and social legal approaches in legal research.

Social Legal and Doctrinal Research
Research is often a rigorous and through examination of materials aimed at informing and reinforcing available knowledge. Scholars note that the fundamental aspect is that any research involves the process of critical analysis of the processes and resilient features that define a subject. It is therefore observable that research employs analysis of the core factors that influence the development process in any field. However, research methodology each field adopts is either qualitative or quantitative. In essence, research is expected to illustrate the admissibility of any development and also to suggest weaknesses of an opinion forwarded by a scholar. Legal research in effect seeks to accomplish a number of issues. For instance, legal research could be used to identify the probable sources of law which are applicable in understanding legal problems and subsequently find solutions to the problems. Legal research is equally driven by procedural considerations the legal fraternity proposes. It is essential to note that the basic need for research is to streamline the procedures through analysis of the changes and adoptions that impact procure and practice. Based on this assertion, it is admissible that research in law often takes into consideration the social effects of legislations on the course of practice and also on the legal doctrines that influence ethics and continuity of law as a practice. In common law, there are a number of set technical rules often applied. On the contrary, these rules may vary in their application because of doubts and need for further analysis for confirmation. A classification of these rules bases on their acceptability as indisputable rules that are established on facts and impeccable sources. These rules constitute black letter law. It is important to note that black letter law is not entirely confined to a specific doctrinal area. In essence, this could be seen in contractual or trademarks law. Nonetheless, it is important to distinguish black letter law from legal jurisprudence. Based on Hart’s opinion on concept of law, law is a definite structure of rules classified into different categories. Theses categories are further divided to encompass the finer aspects of legal resolution. The need for developmental research is grounded on the opinions of outstanding legal scholars and figures. For instance, scholars opine that law is probable social change catalyst. As in every other field, research in law is carried in two distinct perspectives. These are doctrinal and social regal research perspectives.
Social Legal Research Methodology
It is a fact that the law is a fundamental and integral part of the social world. Social aspects of living determine major issues in law given the fact that each legislation or legal position has direct or indirect impact on the prevailing social set ups. Based o the argument that law influences social life, it is worth noting that law is social institution and that any decisions made in law should emphasize on consistency in consideration of the social aspects and that the society should be the primary source of law. Socio-legal research, often referred to as non doctrinal research framework employs the analysis of legal issues based on different disciplines. The research approach draws empirical data from these fields. In this approach, the researcher can choose a qualitative or quantitative analysis of a problem, policy issue or need for a reform in a certain law. In a nutshell, non doctrinal research methodology is embraces all disciplines that are concerned with aspects of law such as legal processes and the effects of legislations and institutions. Given the fact that socio-legal research encompasses different disciplines and theoretical perspectives, it is considered diverse. This is one factor that non doctrinal research method has in contrast with doctrinal research methodology.
It is important to note that criticism to a specific research method stems from the demerits and most importantly, the challenges a researcher faces in the event that he or she adopts the approach in a research. For instance, socio-legal research has a number of benefits. To begin with, the research procedure enables the law students and academics as well as practitioners to experience the law. It is observable that it is impossible to experience the law in action if the researcher adopted a doctrinal analysis. Secondly, non doctrinal research methodology does not lay emphasis on the rule of law but provides systematic references to the contexts of the prevailing problem. The resilient feature of socio legal research is that it draws the society to the rule of law and consequently makes law an integral part of processes that lead to societal growth. As noted earlier, socio-legal research embraces a host of disciplines which contribute to the ability to bridge the divide that exists between law and other disciplines. This is significant because it creates relevance in law and the relativity. In addition to this, socio-legal research presents law in its appropriate way to the public. Whereas these merits are apparent, anti socio-legal research proponents base their argument on the demerits of adopting such an approach. Notably, the process of socio-legal research contributes not only to its merits but also its demerits. In non doctrinal method, the researcher samples data in a qualitative manner. As a result, the interpretation of the data determines the outcome. In most cases, it is argued that the possibility of arriving at different assertions in a similar survey. This is the most commonly held argument against the approach. This is in the end detrimental to the fraternity due to the fact that law practitioners’ neutrality is questioned. The other notable accusation held against socio-legal research is that the present day lawyer believes this methodology is unsuitable for practicing lawyers given the fact that this category of lawyers deal with specific cases. This negates the analysis of broader global and societal issues even if they are concerned with law. This school of thought holds that the fundamental aspect of law is to seek definite answers as opposed to general views. Hyman posits that socio-legal research methods give results in generalities which are inappropriate in practical law. In addition to these, non doctrinal research is believed to be hard to carry out for most scholars. This is because some researchers are not adequately informed of the details of the method. Research timeline is another issue that is often considered in the debate on the appropriateness of non doctrinal research regime. In this regime, the researcher has to locate the issues and subsequently research on the issues. The time needed for such the activities compounds the issues cited for the inadequacy of socio-legal research. The research design determines the outcome of every investigation. This compounds the problems associated with non doctrinal research further. The possibility of failure is inflated if a researcher employs an inappropriate design. This is prompted by the availability of various forms of data collection. For instance, the researcher has to take time and analyze the scope of the issue, sample diversity and data testing technique for a given discipline. The relationship between theory and legal research is identifiable as one area of criticism against socio-legal research regime. This criticism emanates from the belief that socio-legal approach does not explicitly engage the theoretical aspects of doctrine. This was forwarded by British law scholars who noted that socio-legal research approach emphasized more on the descriptive empirical research and failure to fuse sociology of law in these studies. In summary, socio-legal research regime encompasses a number of areas. These include theoretical and empirical examination of law in relationship to the society as a dynamic environment. Secondly, socio-legal research covers the historical and contemporary factors that influence the procedures in law. Lastly, this regime explores the operational procedures of law in its formalities. Considerable amount of criticism is based on the perceived inefficiency of the method given the fact that the procedure examines data from various fields that consider law as an integral part in the development of elemental sectors. The process of decision making based thought analysis is arguably the reason this approach is considered inadequate. For instance, the socio-legal researcher explores the decision making process in regard to the bodies responsible for the administration of law and also an analysis of the experiences of the persons such processes affect.
Doctrinal Research Methods
The traditional approach to law is often centered on doctrines. Scholars note that classical forms of legal scholarship centered on doctrinal investigation. Traditional legal decisions are guided by the need to give a reasoned response for a reasoned argument. The principal of doctrine is founded on critical and evaluative study of the body of legislations that define law as a field. In this regime, the researcher seeks to challenge the basis of legal realism and also emphasizes on the significance of procedure in legal practice especially in hearing cases. Doctrinal research studies explore the procedures commonly used in practice. Inline with the black letter rule, doctrinal analysis values critical analysis of the internally coherent set of rules even though these are unquestionable. The outcomes of an empirical analysis in doctrinal research results in the reversal of rulings handed over by various courts. With these in mind, it is important to evaluate the design and analytical approach doctrinal research employs. This is identifiable in the manner a r...
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