Post on 12-Apr-2015
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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