LAW

RESEARCH METHODOLOGY

QUALITATIVE AND DOCTRINAL METHODS IN RESEARCH

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law

Paper Name Research Methodology

Module Name/Title Qualitative and Doctrinal Methods in Research

Module Id VIII

Learning Outcomes

The following module is a discussion on qualitative and doctrinal methods in

research. The objectives are as following:

To understand the contemporary debate surrounding the qualitative and doctrinal

methods of research

To understand the meaning and concept of qualitative research.

To understand the meaning and concept of doctrinal method of research.

To encapsulate the methods of conducting doctrinal and qualitative research

To discuss the broad aims and objectives of qualitative and doctrinal method of

research.

To comprehend the advantages and limitations of qualitative and doctrinal method of

research.

To understand the distinguishing factors between qualitative and doctrinal method of

research.

The Roadmap

1. Contemporary Discussion on Qualitative and Doctrinal Methods of Conducting

Research.

2. What is Doctrinal Legal Research?

2.1 Doctrinal Method.

Role Name Affiliation

Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National

Law University, Delhi

Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Paper Coordinator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Content Writer/Author Dr Manish Singh

Dr RML National Law

University, Lucknow Content Reviewer Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

3. What is Qualitative Research?

3.1 Common Elements in Every Qualitative Research.

4. The Distinguishing Factors.

5. Aims and Objectives of Qualitative and Doctrinal Method of Research.

5.1 Aims and Objectives of Doctrinal Method.

5.2 Aims and Objectives of Qualitative Method.

6. Basic Tools of Qualitative and Doctrinal Research.

6.1 Basic Tools of Qualitative Research.

6.1.1 Interviews.

6.1.2 Questionnaires.

6.1.3 Schedule.

6.1.4 Interview Guide.

6.1.5 Observation.

6.2 Basic Tools of Quantitative Research.

6.2.1 Primary Sources.

6.2.2 Secondary Sources.

7. Advantages and Limitations of Qualitative and Doctrinal Methods of Research.

7.1 Advantages of Doctrinal Method.

7.2 Limitations of Doctrinal Method.

7.3 Advantages of Qualitative Method.

7.4 Limitations of Qualitative Method.

8. Conclusion.

Suggested Readings.

Assessment / Evaluation.

1. Contemporary Discussion on Qualitative and Doctrinal Methods of Conducting

Research

A brief short introduction to qualitative or doctrinal research debate would be fit to

locate both of them and analyze them with respect to their positives and

shortcomings. Bryman had identified some eleven ways to integrate these two types

of researches. The logic of triangulation (i) means to check for examples of

qualitative against doctrinal research. The qualitative research outcome can support

doctrinal method. (2) and vice versa, (3) both are combined in to provide a more

general picture of the isuue under study (4) structural features are analyzed with

doctrinal methods and processual aspects with qualitative approaches (5) the

perspective of the researcher derives the quantitative approaches, while qualitative

research emphasizes the viewpoint of the subjective (6). According to Bryman, the

problem of generality (7) can be solved for qualitative research by adding doctrinal

findings, whereas qualitative findings (8) may facilitate the interpretation of

relationships between variables in data sets. The relationship between micro and

macro levels in a substantial area (9) can be clarified by combining the two

researches, which can be appropriate in different stages of the research process (10).

Finally, there are hybrid forms (11) that use qualitative research in quasi-experimental

designs.1

2. What is Doctrinal Legal Research?

It can be defined as research into legal doctrines through analysis of statutory

provisions and cases by the application of reasoning. The emphasis is upon analysis

of legal rules, principles or doctrines. As compared to non-doctrinal legal research

which aims at research on relationship of law with society, groups and people. It

involves an empirical inquiry into the operation of law, how the doctrine or principle

which has been adopted in real world settings. Thus, the doctrinal legal research

emphasize upon research in law focusing on the black letter of the law, the non-

doctrinal research focuses on research about law, here the researcher is interested in

knowing about the law in action. The former can be understood as armchair research

or basic or fundamental research, the latter is empirical research.

2.1 Doctrinal Method

It begins by taking up a proposition as a starting point or focus. He then locates the

law in statutes, judicial pronouncements, and discussions in commentaries, textbooks,

journals, and debates. Reads them in a holistic manner analyze them and write his

1 See Flick, Uwe, An Introduction to Qualitative Research, 2006, SAGE Pub. at p.33.

findings. For example, a research on proposition of prevention against double

jeopardy, under criminal law, would begin with locating the law in constitution, and

criminal law materials. On the basis of the analysis of the same he may advance the

set of formulations, or may also highlight the objective behind the proposition and

may propose what it ought to be.

3. What is Qualitative Research?

Developed as an alternative to quantitative research, qualitative Research has grown

from simply being not quantitative research. It has gained multiple dimensions now

which can be understood from the general understanding that this research focuses at

the real world (not in specialized research settings like a laboratory) in order to

understand, describe and explain social phenomenon’s from the inside in multiple

ways. It is done by analyzing experiences of individuals or groups, by analyzing

interactions and communications or by analyzing documents. However, the common

element is that it seeks to identify how people view the world, what they are doing or

what is happening to them in terms which are meaningful and offer rich insights.2

3.1 Common Elements in Every Qualitative Research

Every qualitative research is it methodological, theoretical or epistemological has

certain common elements which can be broadly identified as below:

1. Experiences, interactions and documents are analyzed in their natural context.

2. Concepts and hypotheses are developed and refined in the process of research.

3. It starters from the idea that theory and method should be appropriate to what is

studied. They can be adapted if they do not fit in.

4. Researchers themselves are also an important part of the research process, either due

to their own personal experiences, or research experiences.

5. It takes cases and contexts seriously

6. A major part is dependent on texts and documents, thus, issues of transcribing

complex social situations into texts is one of the major concern of qualitative

research.

7. Experiences, interactions and documents are analyzed in their natural context.

8. Concepts and hypotheses are developed and refined in the process of research.

2 See Flick, Uwe, An Introduction to Qualitative Research, 2006, SAGE Pub. at p.ix

9. It starters from the idea that theory and method should be appropriate to what is

studied. They can be adapted if they do not fit in.

10. Researchers themselves are also an important part of the research process, either due

to their own personal experiences, or research experiences.

11. It takes cases and contexts seriously

12. A major part is dependent on texts and documents, thus, issues of transcribing

complex social situations into texts is one of the major concern of qualitative

research.

4. The Distinguishing Factors

The qualitative legal research is different from doctrinal legal research on many

grounds. Some of them are:

1. It lays down a different emphasis upon legal doctrines and concepts. While the

emphasis of doctrinal is purely basic and fundamental in exposing the law as it exists.

The latter looks it from the perspective of social reality.

2. Qualitative Research seeks to answer broader issues as clear from the aims and

objectives as would be discussed below. The doctrinal research has a focus on a

particular point of law.

3. It does not focuses exclusively on case reports and other traditional primary and

secondary legal documents for analysis. However, it is dependent on doctrinal

methods in the sense that without a thorough grasp on fundamentals the qualitative

researcher would not be able to chart his voyage in a meaningful manner.

4. It takes a different route for research which has in focus to analyze law in action as

distinguished from law in books.

5. Aims and Objectives of Qualitative and Doctrinal Methods of Research.

The qualitative and doctrinal methods have different aims and objectives while the

former is about finding and analyzing the legal concepts, and doctrines, like for

example, the principle of strict liability under law of torts. The latter is concerned

with law in action, that is, as to analyze the legal idealism from the lens of social

reality. Each has its own utility and uniqueness and are interdependent on each other.

5.1 Aims and objectives of Doctrinal Research

A doctrinal Research has following aims and objectives, namely:

1. To find the law in the legal statutes, subordinate legislations and judicial precedents.

2. Aims at consistency and certainty of laws.

3. To some extent look into the purpose and policy of law that exists.

4. Aims to study legal institutions like courts, police machinery, jails, tribunals etc.

5.2 Aims and Objectives of Qualitative Research

A qualitative research focuses on the social facets of the law. Its primary aim is to

determine through empirical data how law and legal institutions affect or mould

human attitudes and what is their impact on the society they create. The researcher

primarily looks into:

1. How far the law and legal institutions are serving the need of the society?

2. Are they suited in the social context in which they operate?

3. Determine the forces that shapes, reshapes and mould the law.

4. To analyze how far the law has been enforced and administered.

5. Causes for the factors responsible for the poor performance of the law.

6. To look into the factors which moulds the enforcement machinery attitudes and

behavior while interpreting and enforcing the law?

7. Are beneficiaries under the law using it or the law is merely symbolic.

8. Whether the targeted beneficiaries are benefitting out of the law?

9. If the law is failing to help people where does the problem lie?

10. Impact of law on behavior and attitudes of society, people and groups.

6. Basic Tools of Qualitative and Doctrinal Legal Research

Every research has its own specific tools and methods. Research instruments are the

tools in the hands of the researcher to conduct the research. Proper tools ensure a well

planned and systematic enquiry. The researcher shall aim at developing procedures

which are reliable and valid. By being reliable it is meant that there is a consistency of

a measure, while being valid means to which the measure achieves it aims. 3They can

3 See Dianna Hinds, Research Instruments in The Researcher’s Toolkit, David Wilkinson (ed.) Routledge, (2000) at p.42.

be classified into primary and secondary sources. Let us have a look into the tools for

these two types of researches.

6.1 Basic Tools of Qualitative Research

There are several ways of collecting data for qualitative research. The primary sources

are interview, questionnaire, schedule, interview guide and observation. It can be

collected from either posing selected respondents to a set of pre-determined questions

or sketchy questions. It involves a face-to-face conversation and this tool of data

collection is known as ‘interviewing’. The pre-determined questions can also be

mailed, sent by post, fax or other ways in order to gather responses from selected

respondents. This tool of data collection is known as data collection by way of

‘questionnaires’. The researcher can also collect data by the method of ‘observation’ a

systematic observation of a phenomenon, behavior of participants (respondents or

institutions). The secondary sources are the published or unpublished reports for

example crime records, reports of international organizations etc.

6.1.1 Interviews: It is a verbal technique of data collection. It may be structured or

unstructured,. It is structured when the researcher uses a set of pre-determined

questions and highly standardized technique of recording responses. It is

unstructured when there is flexibility in the approach to the questioning and much

lesser standardized way of recording the responses. The strength of this tool is

that it remains to be the most effective method of gaining information about

respondent’s perception and opinions. It also enables the researcher to

authenticate the information coming from the respondents by observing the body

language of the respondent. However, administering an interview is an art. One

needs to have the required skill set in order to conduct a meaningful interview.

Undoubtedly being most effective it has its limitations, like memory bias,

inability of the respondents to provide every information asked for and bias.4

6.1.2 Questionnaire: Herein a number of typed or printed predetermined questions are

used for collecting data. It is send to the respondents with a request to send it

back to the researcher after filling the responses. It may also be structured or

4 Cannell and Kahn, The Collection of Data by Interviewing, in leon Festinger and Daniel Katz (eds.) Research Methods in the Behavioral Sciences (Amerind Publishing Co., New Delhi, 1953) at 330-331.

unstructured. The questions may be open-ended, close-ended, mixed or pictorial.

This method can be very effective in circumstances where the respondents are

scattered in a vast area. It is quicker and cheaper as compared to interviews.

6.1.3 Schedule: schedule is more or less same as the questionnaires. But the major

differences are that schedule is referred to a form filled in by the interviewer

during his personal interview with the respondents. And questionnaire being

impersonal is rigid; the schedule is flexible because it gives the opportunity to the

researcher to clarify the questions, if they are not clear to the respondents.

6.1.4 Interview Guide: It contains only the topics or broad headings upon which the

respondents are asked to answer. Usually the questions are formulated on the spot

and the responses are thereby recorded.

6.1.5 Observation: It is a visual method of data collection. It is another scientific way

of data collection, when planned in a systematic manner and recorded

systematically, and is subject to check and control on validity and reliability.

6.2 Basic Tools of Doctrinal Research.

Statutory materials, subordinate legal materials and case laws constitute the

primary resource. While the secondary resources the researcher refers to are the

textbooks, legal articles, parliamentary debate, etc. for example, if someone has to

undertake a study on the Principles of Compulsory Licensing under the Law of

Patents, then the relevant provisions of the Patents Act, 1970, International

Instruments pertaining to compulsory licensing, law on compulsory licensing in

different jurisdictions, Finding of the Courts, and Intellectual Property Appellate

Board like in the Matter of Application for Compulsory License by Natco Corp.,

in C.L.A. 1 constitutes primary sources. While the commentaries on the provision

pertain to compulsory license in standard text books, commentaries, articles in law

journals, news reports, blogs etc would constitute secondary sources.

7. Advantages and Limitations of Qualitative and Doctrinal Methods of Research

7.1 Advantages of Doctrinal Method

Doctrinal method has following advantages:

1. It provides quick answers to the practical problems at hand by analyzing the legal

principles, concepts and doctrines. Thereby serving as a ready reference to people

who didn’t have time at their disposal to undertake that research by themselves.

Because comparatively speaking a doctrinal research requires less time. So thereby it

ensures a constant stream of information on a regular basis.

2. It gives insights into the evolution and development of the law. For example,

consumer protection law.

3. It offers a logical explanation to the law and at the same time also highlights

inconsistencies and uncertainties in the law.

4. It reveals gaps ambiguities and inconsistencies in the law. Thus informs has to law

can be more purposive and effective. It lay down a roadmap to develop the law by

avoiding the pitfalls.

5. It helps in incrimination of legal knowledge base.

6. Future direction of the law can be predicted on the basis of such studies.

7. It provides a sound basis of non-doctrinal research. Because in deficit of the required

preliminary knowledge the venture of non-doctrinal research would be directionless

and therefore futile.5

7.2 Limitations of Doctrinal Method

The doctrinal method suffers from following shortcomings:

1. It can be subjective and suffer from the vice of perception of the researcher about the

enquired subject matter. Therefore another person can reach upon an entirely

different dimension to the same question.

2. It is devoid of any support from social facts. Therefore his projection might be far off

the social reality. This is a serious concern as law can act as an instrument of social

transformation.

3. It neglects the factors that lie outside the strict brackets of law, which might have a

bearing upon the legal principle, theory or doctrine. For example, the recent

amendment in the criminal law regarding rape, wherein a huge public outcry was an

extra-legal factor that shaped the law.

4. The actual practice and attitudes of people who are the functionaries and those who

implement the law is also not taken into account. Example the attitude of judges,

lawyers, police, administrative authorities, courts, and tribunals etc.

5 See S.K. Verma and Afzal Wani (eds.), Legal Research and Methodology (Indian Law Institute, New Delhi 2nd Edition, 2001) at p. 656-657

Nevertheless, doctrinal legal research has its own unique advantages and

contributions, whose importance cannot be disregarded.

7.3 Advantages of Qualitative Research

The qualitative research has following merits:

1. It highlights the gaps between goals and social reality. It depicts a true picture of law

in action. It highlights the gaps in relation to practice of law enforcement agencies

and as well as in the use and under use of the law by the beneficiaries of the law. It

highlights the reasons behind failure of a law in real world. It may be inactiveness or

lack of willingness on the part of those entrusted with the task of enforcing the law,

or may be resistance on the part of intended beneficiaries for multifarious reasons,

like unawareness, fear of further victimization, huge costs in terms of time and

money. It thus exposes the weakness in the operation of law.

2. In the modern welfare state, law acts as a tool of social and economic transformation.

The qualitative research can bring forward the role and contribution of law in

bringing about desired changes. It also can highlight the gaps that have been left in

the law and social reality so that law can be reassessed in the light of new

information.

3. It serves as a significant resource in the form of a social feedback to policy framers,

legislators and judiciary so that they can better enforce, legislate and interpret the

law.

4. It shapes social legislations in tune with the social engineering doctrine of the modern

state.

7.4 Limitations of Qualitative Research

The qualitative research has following limitations:

1. It is extremely time consuming and also costly.

2. The researcher has to build upon the bedrock of doctrinal research. He must be

through with the doctrines and concepts; otherwise, his research endeavor would be

futile.

3. The primary tools of data collection, namely, interviews, questionnaires, and

observation requires a specialized skill set right from the stage of planning to the

execution.

8. Conclusion

From the above analysis it can be understood that qualitative research arose primarily

as a critique of doctrinal research. It was felt that the research outcomes were

inadequate and incomplete in absence of an analysis done in real world settings.

Nevertheless, both research methods had their own merits and shortcomings. But it

can safely be concluded that both informs the law and policy and are interdependent

on each other.