LEGAL RESEARCH

Soraya Chitsaz-Ahmadi

Ph.D Student of Law, Department of Law, University of Pune,

E-mail: dr.s.cha@gmail.com

INTRODUCTION

     All sciences, including jurisprudence, are in reality a culmination of the process and helps to identify and understand the issues better and find suitable solutions thereto. Research may, however, be formal or in formal, doctrinal or non-doctrinal but to be effective it has to be methodical and a researcher should have requisite acquaintance with the problems and a researcher should have requisite acquaintance with the problems and techniques, failing which the desired goals may not be achieved. The study of law is closely connected with legal research, which is necessary to give it a proper direction. Sound propositions of law and arguments cannot be construed without legal research. It is, therefore, equally indispensable for students of law, lawyers, judges and scholars who specialize in legal research.

     The present paper, is answering the following questions:  

      Why legal research?

      What is research?

       Who is to do the research and where?   

THE REFLECTIONS ON LEGAL RESEARCH  

     The first question is why legal research? If numerous laws were perfect, if social control were automatic legal scholarship, could be left to wither away. But our laws are not perfect and final, and cannot be so in a dynamic society they are not always even intelligible, and if intelligible, not always intelligently made.

     The function of the lawyer is not only to know the law, but the task of the lawyer is also to revolve conflicts when the law is not clearly knowable and when prediction cannot be certain. The French Code[1] is not alone in stating in sufficiency or obscuring of the law is no reason for refusing judgment. If law exists to produce justice, then there is in gremio legis a possible just answer for any controversy. Practicing counsel who advises an appeal to the Lords assumes this; when he appeals he says[2] in effect, that his reason is better than that of the Court of Appeal. If he is prudent, he will not put the matter so bluntly to his client, tactically he will no doubt dwell on the difficulties of the appeal, he will be modest and he will not raise his client’s hopes too high. Whenever he appeals against the authorities, the practitioner is acting as an academic.

       In fact, there is no different between practical and theoretical law, when you either know the law if it is knowable in any particular legal order, or you are prepared to say what it ought to be if it is not clear. The researcher still appeal to principle and to reason or, occasionally to such fundamental human rights and values as are enshrined in the European Convention on Human Rights.  

     Regarding to the question that What is research; the 1911 Encyclopedia Britannica suggests that the term research “is used of a course of post-graduate study at a university”.[3] But this is plainly inexact. Some post-graduate degrees are research degrees, some are not. Those which are research degrees, however labeled, may in fact make a contribution, however modest, to scholarly knowledge. The 1911 Cambridge Edition of the Encyclopaedia Britannica is illuminating on research in a way that the 1955 Chicago edition is not. It points out that; the act of searching into a matter closely and carefully inquiry directed to the discovery of truth and in particular the trained scientific investigation of the principles an facts of any subject, based on original and first hand study of authorities or experiment. Investigations of every kind which have been based on original sources of knowledge may be styled research and it may be said that without research no authorities made, no theories of any value propounded.

      Who then is to research as a full-time occupation? Until we have an economic depression in the law, we shall depend largely on bright young men from overseas and upon part-time work. Students present special problems. They are often cut off from their family and social habits for long period of arduous toil in a new climate. They have language difficulties. Ideally they should be tested in advance for general character and staying power, as well as in the use of English.

     In so far as it is not done by a full-time research student, legal research seems likely to continue to depend upon the scholarly practitioner research ring as a pastime and, more especially, upon young academic, working in his free time and vacations, or on his accessional leave of absence. If he is wise, the academic will try to set aside one day a week, even in term time, free for writing. Research on a part-time or full-time basis, is best done after a spell of practice in chambers or in an office.[4]

     A new method of obtaining researches of experience is that of seconding Civil Servants and others to honorary research fellowships. For example the Simon fellowship awards have also brought us visiting professors of distinction, as has the schill fund for international law. It maybe too that the retired legal civil servant who at 60 is full of vigor will increasingly take to legal research as an interesting if not a money-making occupations.

     Finally a word about the state of the law in the Commonwealth for many years  had before the statutes of Westminster in 1931, a good deal of useful legislation notably in Commercial matters that applied throughout the Commonwealth statutes on such vital matters as the sale of goods bills of exchange we also had bankruptcy and probate legislation which applied extra territorially.

CONCLUSION

   The legal scholars write and write, the law journals publish and publish and what do we have? First, the scholars, with the aid of the legal profession must announce that their needs for legal research arise from a determination to do something new. Second, legal scholars must joint forces with the other social scientists. Economists, political scientists, sociologists, and others are all approaching their problems today by concentrating on behavior. They have left the ivory toward and are out on the streets talking to people gathering statistics and other facts. Legal scholars can be of help when it comes time  to translate finding into law but only if the legal scholars know something about the facts too.

This union of social scientist and legal scholars will succeed however only if the social scientists are convinced that legal scholars have adopted and believe in the true empirical approach.

   The legal scholar must band together and propose a tremendous program of research. Only in this way way will anyone be convinced that legal scholarship has changed from bookish introspection to empirical study.  

REFERENCES

1-      Indian Law Institute, Legal Research and Methodology, Second Edition 2001.

2-      The Legal Edition, The Materials of Law Study, Third Edition 1951.

3-      Lawyers and Touts, A Study in the Sociology of the Legal profession, 2005

[1] - Which is the main document of law.

[2] - Indian Law Institute, Legal Research and Methodology, Second Edition 2001, at page 2.

[3] - Lawyers and Touts, A Study in the Sociology of the Legal profession, 2005.

[4] - The Legal Edition, The Materials of Law Study, Third Edition 1951, at page 331.

Note: This paper was presented at the International Conference on Optimization & Development in Sciences, jointly organized by the Iranian Islamic Association of Pune, University of Pune, and Iranian Islamic Union of Indian subcontinent, on 17 December 2009 in Pune, University of Pune. This paper was first published on www.balochacademy.org Baloch Academy Of Humanities.