The position of legal studies has increasingly become part of a debate between jurists and their university colleagues. Additionally, many academic attorneys have disengaged from their traditional role of analyzing and commenting on jurisprudence and drafting laws, including efforts to make the legal system consistent. This change has gone hand in hand with the processes of internationalization, Europeanization and globalization during the last 30 years. Law as a discipline became a national discipline particularly in the 19th century, it has detached itself from national legal debates in recent years. .
Traditional Methodology of Legal Studies
Traditional legal scholarship, systematically organized into legal domains such as constitutional law, administrative law, criminal law, private law, and procedural law, is seen as having to do with rule-making. They have to do with jurisprudence and evolution in national jurisdictions, as well as in international legal domains. Legal discussions focus on the best ways to draft legislation and how the rules of law should be applied in specific cases.
For example, from the perspective of the unity of the law and legal certainty. Academic commentary on jurisprudence is a point of reference for professionals. They are used to explain what a trial does not say explicitly as well as to comment on the decisions made by the courts. For example, comparing the judgment and its reasoning with previous decisions in jurisprudence and academic debate. Just beyond the current contemporary debates in progress, is the domain of legal historians. They are thought to be studying law that is no longer in force or, in Glenn’s words, studying dead law.
Lack of methodology
However, in traditional legal research, academic lawyers do not usually refer to any methodology. Increasingly, traditional legal research faces the challenge of making its methodology explicit and even rethinking it. Scholars from different disciplines point to the lack of reflection on methodological considerations in most traditional legal research designs.
They compare this with what is common in their own disciplines. In many academic legal publications, the research design and descriptions of the methods used are not discussed in detail. Validity issues are generally completely ignored. The question then becomes how legal research evolves methodologically, what steps should be part of it, and why, and what constitutes the validity of legal research.
Need to use new methodologies
There are many academic lawyers who still cling to the national context of administrative, civil and criminal law, with a focus on commenting on it and using their national language. However, the playing field of the jurists, as well as the rules of the game, the methodology, have changed enormously.
That change has sparked a debate about methodology in legal studies, which was long overdue. The need to develop legal research methodologies comes to the surface when lawyers try to cooperate with academics from different disciplines. It is also visible when lawyers attempt to compete for research funds with academics from disciplines other than law. In the social sciences, empirical research methods are part of everyday academic life. This ongoing debate is absent from most law schools.
Relevance of Modern Methodology in Legal Studies
Drafting new rules for court proceedings, as in the current Quality and Innovation project of the judiciary in the Netherlands, only makes sense if one has a thorough understanding of the practices of court proceedings. Specifically, of court case management, of how defenders participate in the processes, of the role of information and communication technologies (ICT) and of the obstacles that ordinary people face in accessing judicial processes. it applies to practically all subjects of law.
And the best lawyers are those who combine the best memory and understanding of legislation and jurisprudence with the best knowledge of its application in society. In traditional legal research, authoritarian texts such as legislation, jurisprudence, and doctrinal literature are considered the main formal sources of information for understanding positive law. Based on this information, lawyers organize, analyze, and resubmit this information. In this way they can persuade their colleagues, legislators, judges, and practitioners to follow their line of thinking.
Advantages of Modern Methodology
Providing advice on how the legal system can be improved, by creating new rules to protect privacy in relation to modern ICT, for example, or how judicial powers should be applied can be seen as a typical mission of academic lawyers. This is usually done by referring to scholarly publications, scholarly commentaries, jurisprudence and legislation, and by referring to the results of studies in other disciplines. From legal analysis, it is quite common for lawyers to reach conclusions that lead to advice on how to improve the law. The advice can be directed to the legislator, judges, practicing lawyers or all of them. The quality of legal research is measured by the quality of the conceptual analysis, the quality of the reasoning and rhetoric and, last but not least, the quality of the references in the text.
Research methodologies in Legal Studies
There are different types of research methodologies. The methodology refers to the strategy used in conducting an investigation. The following methodologies are some of the most commonly used in legal and social science research
Doctrinal
The methodology of legal doctrinal research, also called “black letter” methodology, focuses on the letter of the law rather than on the law in action. The purpose of this method is to collect, organize, and describe the law. It also provides comments on the sources used. Then, identify and describe the underlying issue or system and how each source of law is connected. The doctrinal methodology is good for areas of law that are primarily black letter laws, such as contract or property law.
The researcher should identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether or not the cases interpreting the rule fit into a coherent system). Also, the researcher should also identify ambiguities and criticisms of the law and offer solutions. Data sources in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentary and literature on the rule.
This approach is beneficial in providing a solid structure for developing a thesis, organizing the article, and allowing for a comprehensive definition and explanation of the rule. The disadvantages of this approach are that it may be too formalistic and may lead to over-simplification of legal doctrine.
Comparative
The comparative legal research methodology involves a critical analysis of different bodies of law to examine how the outcome of a legal problem might be different under each set of laws. Comparisons can be made between different jurisdictions. We can take as an example, compare the analysis of a legal issue under US law and the laws of another country, or researchers can make historical comparisons. When using a comparative approach, be sure to define the reasons for choosing this approach and identify the benefits of comparing laws from different jurisdictions.
You can also use different time periods, such as finding common ground or determining best practices and solutions. A researcher can use the comparative approach to better understand his or her home jurisdiction by analyzing how other jurisdictions handle the same problem. This method can also be used as a critical analytical tool to distinguish particular features of a law. The disadvantage of this method is that it may be difficult to find material from other jurisdictions. In addition, researchers must ensure that comparisons are relevant to the thesis and not just used for description.
Empirical
This type of research uses data analysis to study legal systems. A detailed guide to empirical methods can be found here. The process of empirical research consists of four steps: designing the project, collecting and coding the data, analyzing the data, and determining the best method for presenting the results. The first step, designing the project, is when researchers define their hypotheses and concepts in concrete terms that can be observed.
Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then place the data in a format that can be analyzed. When researchers analyze the data, they compare it with their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little or no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and making inferences.
There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is almost a summary. The researcher uses the known data from the sample to draw conclusions about the entire population. Causal inference is the difference between two descriptive inferences.
Qualitative and Quantitative Approaches
Quantitative or numerical empirical legal research involves taking information about cases and courts. This information must be translated into numbers and then analyzed with statistical tools. Qualitative empirical legal research, or non-numerical research, involves extracting information from the text of court documents. The text must then be interpreted and organized into categories and that information must be used to identify patterns.
Empirical quantitative approaches
Liesbeth Hulst, Kees van den Bos, Arno Akkermans, and Allan Lind developed a field experiment to discover how the absence or presence of a need to make sense of a situation over which they have little control affects litigants’ perception of how they are treated by judges and their trust in judges.
This need to make sense is related to the inhibited behavior in such situations, and this inhibition was manipulated. The two experiments they report were conducted in the context of bankruptcy hearings and in the context of criminal court hearings. The results showed that the absence versus the presence of psychological processes of ‘behavioral inhibition’ makes a big difference.
New Findings in the Quantitative Methodology of Law Firms
The authors do not seek to link their research to normative approaches to law (or law in books). This is good, of course, since the study is clearly relevant to understanding how legitimacy and confidence in judges relate to judges’ perceptions. But the article does not discuss the role of empirical psychological research in law as a normal discipline. Further research and conceptual thinking will be needed to explore this issue.
Tom Tyler focuses on the relationship between empirical findings and normative law among other things. In doing so, he favors evidence-based law. Better facts and better laws lead to more justice. The empirical method, such as actuarial risk calculations, can predict human behavior better than intuitive hunches and can inform law. However, many of these calculations lack explanatory power because they are not based on theory.
Tyler compares institutional designs and their influence on human behavior for the legal system with organizational designs and their influence on human behavior. He also discusses research that shows what factors influence human behavior in organizations, and especially compliance with core norms and values. Placing this parallel in a Weberian context, Tyler draws our attention to the fact that compliance is not necessarily based only on profit and loss when the law is not obeyed. There is also the possibility of compliance based on shared values and consent, hence a value-based rather than an instrument-based explanation.
Qualitative Empirical Approaches
Aikaterini Argyrou discusses the complementarity of doctrinal legal research (internal perspective) and empirical legal research methods (external perspective), such as law in books and law in action. Qualitative empirical research can inform how the law is applied in practice. This opens possibilities, for example, for legal evaluation research. It labels empirical qualitative research as interpretive and constructivist, and empirical quantitative research as positivist. She goes on to explain case study research as qualitative empirical research, research. For her, legal case studies are able to describe, understand, and explain certain phenomena.
New Findings in Qualitative Methodology in Law Firms
This can also be useful for a triangulation approach. That is, a combination of different points of view and different types of data, in order to find the most consistent structures or explanations. The disadvantages of case studies, according to Argyrou, are the risk of researcher bias, limited generalizability of research results, and the time needed to learn a new approach or understand a new social field. However, both internal and external validity can be strengthened by triangulation of data sources, methods, and theories.
Therefore, it advocates qualitative empirical research methods in legal studies, provided that the researcher systematically applies methodological rigor. This is in order to reinforce the internal and external validity of such legal research. These are contributions that fit the realistic paradigm.
These are contributions that fit the realistic paradigm. This cannot be said of the last two approaches, because they reach, but do not touch, the legal consequences of their studies. The social psychologists from whom legal researchers can learn so much by their methodologies hesitate to step into the legal realm with their knowledge.
Drafting of the methodology section in the Law Firms
This section will contain a detailed description of how the research was conducted and why it was done that way. First, write an outline of what to include in this section and gather the necessary information. Generally, a methodology section will contain the following: Statement of research objectives Reasons for the research methodology used Description and rationale for the data collection tools, sampling techniques, and data sources used, including a description of how the data collection tools were administered Discussion of limitations and data analysis tools Discussion of data analysis tools used Make sure you have clearly defined the reasoning behind the methodology and the sources chosen.
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