Nature and Purpose of Legal research

Chapter 1

Research: a systematic study/

investigation of existing facts/ knowledge, to find some truth/ reality

Legal research: a systematic study of legal rules, principles, concepts, theories, doctrines, decided cases, legal institutions, legal problems, issues/ questions, (including customary principles & practices having the force of law) or a combination of some or all of them

Meaning of legal research

To ascertain the nature, purpose & policy-objectives of legal rules and principles, and determine their current relevance, utility, adequacy / efficacy

To examine legal principles & precedents – to determine their scope of application & evaluate the approach

To examine legal concepts, ideas, notions, theories/ doctrines so as to ascertain their relevance, correctness, validity, utility @ truth

Objectives of legal research

To identify weaknesses & defects of an

existing law To examine the nature & composition of a

legal institution, its objectives, the efficacy of its working, its success/ failure

To compare legal provisions, principles/ institutions existing in a particular legal system with those in other legal systems

Objectives (cont’d)

To identify the advantages/ disadvantages of

certain aspects of law/ legal institutions, to suggest ways for improvement

To study the causes that led to the adoption of a particular law, principle/ legal institution

To discover new facts/ verify old facts/ extend knowledge/ develop a theory/ arrive at a general conclusion & make a general statement

To explain, interpret/ evaluate ideas/

principles; in order to provide further knowledge/ explain its aims, usefulness, value, relevance, correctness/ validity

To explain the nature operation of certain legal principles, concepts/ processes in actual fact-situations

To study some social phenomenon to know

why some facts exist/ occur, or ascertain the ideas, opinions, values/ behaviour patterns of certain group/ classes of people & relate the phenomenon to some aspects of law

To study some social problem, issue/ question & examine how law deals with it; or how best law can be changed/ reformed to deal with it

Legal research deals with some kind of problem/

issue, where its solution seems to lie in some aspect of law

Problem: Any matter considered as something that is a cause of concern & needs to be corrected, reformed or needs some solution

Issue: any matter that needs a careful consideration/ thought which may have some relevance to law

A question may take the form of how, why, when, what; & a research is to find out the answer

Legal research: A problem solving-

exercise?

Doctrinal research Socio-legal research

Social research

Approaches to legal research

Also known as theoretical, pure legal, academic,

traditional, conventional, armchair research A library-based study, materials available in

libraries, archives & other databases It is to discover, explain, examine, analyse & present

facts, principles, provisions, concepts, theories or the working of certain law / legal institutions, in a systematic form.

Doctrinal Research

Also known as non-doctrinal, field study,

empirical research Study of ‘law in operation’, ‘law in context’, ‘law

in action’ A study of how law operates in a social context or

how law deals with social problem, issue or question

Uses techniques of data collection used in social science research (observation, content analysis, case studies, or survey research using interviews & questionnaires)

Socio-legal Research

Social research is a systematic study into

social, political or other fact-conditions, to discover factors behind a particular phenomenon, to understand why something happens & to draw inferences & general conclusions

It ascertains why & how human beings behave in a certain way in certain factual situations

It is to identify cause & effect of a certain problem

It seeks to ascertain people’s ideas, views, attitudes/ values on a legal/ social problem, issue/ question

Descriptive & exploratory Explanatory Analytical & critical Historical Comparative

Types of legal research

Descriptive study seeks to find out what

happened; to ascertain the state of affairs of any problem, issue or question, to describe facts, situations and facts;

In a systematic way Examples: explaining legal & administrative

mechanism, ascertaining and describing the attitude of legal institutions, describing the nature of jurisdiction, powers and mode of working to suggest reforms.

Descriptive and Exploratory Studies

Exploratory approach focuses on an

unstudied topic or area of knowledge to find out unknown / partly known facts; to develop some kind of plausible explanation

Explanatory studies seek to tell why or how

something happened; to study the nature and objectives behind the enactment of certain laws, and explain why the need arose for such laws.

The goal is to answer why and how question. Examples: Why do ….; how has law been used in as

a….

Explanatory Studies

Analytical study carefully examines & evaluates

something in order to understand/ explain it or draw inferences & conclusions from it

Critical approach examines & judges things carefully; points to the inadequacies, drawbacks/ disadvantages; expresses own opinion; approves/ disapproves something on some rational basis

Analytical and Critical Studies

In legal research, this approach examines rules,

principles, cases, concepts, theories or institutions with concern on law reform.

The purpose is to analyse & examine the nature, purpose & adequacy of law in area of social, economic & politic and suggest appropriate changes

Historical approach is an objective study of the

past facts, events/ institutions; with purposes: To find out how & why certain rules, principles/

institutions exist To find out the origin / trace the development of

anything related to law To see whether any changes in the law are needed To study previous principles/ practices and in what

way they have now changed/ reformed

Historical Studies

It enables to understand the historical

development of law in any specific area – to assess the utility/ adequacy of the existing law or the need for change/ reform

Sources: public/ private documents, legislative debates, files, diaries, past newspapers, articles, manuscripts, books, tape recordings, social, economic or political materials on socio-legal problems, past official statistics, census reports or ‘oral history’ of elders in the community

Research in comparative perspective examines

similarities & dissimilarities between 2 situations within the same legal system; or studies the nature & effects of certain law on economic & social development in one area compared with other parts of the country

Or studies some problem, issue/ question in one legal system, compared with existing position in some other legal system

Comparative Studies

The objective is to:

Present information, existing in 2 or more different factual contexts,

Examine merits & demerits in a comparative perspective,

Compare and contrast views, ideas, values, concepts, rules, principles, theories etc. related to law & institutions

The purpose is to suggest improvement in law, to be more effective and efficacious

The concept of justice in comparative

perspective The constitutional protection of fundamental

liberties in Malaysia with special reference to freedom of speech and expression

Research on legal concepts

The implementation of International Forestry

Principles in Malaysia: a critical study For the best interest of the child :a study on

the welfare principle in child custody disputes under the Malaysian laws

Research on legal principles

The powers and functions of the Pardons

Board in Malaysia - a review The effectiveness of discipline in the Royal

Malaysian Police Force : an administrative law perspective

The functions and powers of the Public Services Commission : an analysis of the rights of public servants as protected by the constitution and common law

Research on legal institutions

Strengthening separation of powers between

the legislature and the executive in Malaysia The ultra vires doctrine as applied to

companies : a comparative study The doctrine of privity in Malaysia : the need

for reform and the way forward

Research on legal doctrine

Rights of the accused : does the administration of

criminal justice in Malaysia adequately protect the rights of the accused?

Reform of juvenile criminal justice : a special focus on the effectiveness of correctional treatment in approved schools

Are the taxpayers' rights adequately protected in Malaysia?

Issues on orphaned grandchildren's rights of inheritance

Research on issues and questions of law

Harm reduction in Malaysia : An assessment

on the knowledge, attitude and readiness of the police officers' towards the implementation of initiatives

An analysis of the laws relating to environmental impact assessment in Malaysia with specific reference to federal-state jurisdiction

Research on legal problems

Adat perpatih dan hukum syarak di Negeri

Sembilan: analisis perbandingan berkaitan institusi kekeluargaan dan pewarisan

Research on customary principles & practices

The rule against hearsay : its exceptions under

the Evidence Act 1950 and Islamic legal principle

Research on legal rules

A theoretical comparison between al-bay'

bithaman 'ajil, musharakah mutanaqisah partnership and ijarah sukuk

Research on legal theories