Legal
research is the systematic investigation of problems and of matters concerned
with law such as codes, Acts, constitution etc. Judges, lawyer`s, Law
commissions and researcher constantly do research in law. They do make
systematic research into the social, political and other fact conditions which
give rise to the individual rules. For example, in the case of Mc Dowell and
Co. Ltd. v. Commercial Tax Officer. Justice Chinnapa Reddy presented his
investigation and and analysis of cases of tax avoidance in his separate
judgment. It is a research report of tax avoidance in terms of legal
methodology.
Research
area in law is related to pure law or law in relation to society. Legal
researchers do make systematic research into facts of social, political and
economic conditions which give rise to the individual rules, acts and codes.
They also examine the socio-legal and other effects of the acts or rules.
Research may be pursued to obtain the better knowledge and understanding of any
problem of law, legal institution in society, legal doctrines, legal philosophy,
legal history, comparative study of law, or any system of positive law-
international and municipal.
Generally, law is influenced by the prevailing social values and ethos. Most of the times, law also attempts to mould or change the existing social values and attitudes. Such a complex nature of law and its operation require systematic approach to the ‘understanding’ of ‘law’ and its ‘operational facets’. A systematic investigation into these aspects of law helps in knowing the existing and emerging legislative policies, laws, their social relevance and efficacy, etc.
In this backdrop, the present course on Legal Research Methods intends to acquaint the students of law with scientific methods of inquiry into law. It also intends to make them familiar with nature, scope, and significance of legal research. In addition, it endeavors to make them aware of role of legal research in the development of law and legal institutions, in particular and socio-economic development of the country in general.
With these objectives, the course addresses to sources, categories and types of legal research. It focuses on legal research methods and tools. It highlights different dimensions and tools of doctrinal legal research as well as non-doctrinal legal research or socio-legal research. In other words, the course strives to instill in the law students basic skill of identifying research problems, planning and executing legal research projects and of appreciating the problems associated therewith. It aims at
instilling in them basic research skills so that they can plan and pursue legal and socio-legal research in future.
LAW AND SOCIETY: MUTUAL RELATIONSHIP & INTERACTION
Law does not operate in a vacuum. It has to reflect social values, attitudes and behavior. Societal values and norms, directly or indirectly, influence law. Law also endeavors to mould and control these values, attitudes and behavioral patterns so that they flow in a proper channel. It attempts either to support the social system or to change the prevalent social situation or relationship by its formal processes. Law also influences other parts of the social system. Law, therefore, can be perceived as
symbolizing the public affirmation of social facts and norms as well as means of social control and an instrument of social change. Commenting on the interrelationship between law and society, Luhman observed:
All collective human life is directly or indirectly shaped by law. Law is, like knowledge, an essential and all pervasive fact of the social condition. No area of life-whether it is the family or the religious community, scientific research is the internal network of political parties-can find a lasting social order that is not based on law ---. A minimum amount of legal orientation is indispensable everywhere.
Law is not, nor can any discipline be, an insular one. Each rule postulates a factual situation of life to which the rule is to be applied to produce a certain outcome. Law, in essence, is a normative and prescriptive science. It lays down norms and standards for human behavior in a set of specified situation(s). It is a ‘rule of conduct or action’ prescribed or formally recognized as binding or enforced by a ‘controlling authority’. It operates in a formal fashion. It enforces these prescribed norms through state’s coercive powers.
However, the societal values and patterns are dynamic and complex. These changing societal values and ethos obviously make the discipline of law dynamic and complex. Law, therefore, has to be dynamic.
Law has acquired a paramount significance in a modern welfare state as an effective instrumentality of socio-economic transformation. It indeed operates as a catalyst for such a transformation. Such a complex nature of law and its operation require systematic approach to the ‘understanding’ of ‘law’ and its ‘operational facets’. A systematic investigation into these aspects of law helps in knowing the existing and emerging legislative policies, laws, and their social relevance. It also enables to assess efficacy of law as an instrument of socio-economic changes and to identify bottlenecks, if any. Law, thus, has a social context. Law without its social context is simply a noteworthy mental exercise. ‘Law without social content or significance is law without flesh, blood or bowels’( S P Simpson & Ruth Field, Law and the Social Sciences, 32 Va L Rev 862 (1946)).
LEGAL SYSTEM: A SYSTEM OF NORMS AND SOCIAL SYSTEM
In this background, a system of law can be conceptualized in three principal ways. First, a legal system can be conceived as an aggregate of legal norms. Second, it can be conceived as systems of social behavior, of roles, statutes, and institutions, as involving patterned interactions between the makers, interpreters, breakers, enforcers, and compliers of the norms of law. Third, legal system may be equated with social control systems, involving differential bases of social authority and power, different normative requirements and sanctions, and distinctive institutional complexes. Thus, there are three dimensions or aspects of a legal system: (i) legal system as a normative system, (ii) legal system as a social system, and (iii) legal system as a combination of formal and non-formal norms of social control. Each one of these dimensions of ‘legal system’, however, raise different queries for investigation and set different orbits for inquiry.
Legal system, as an aggregate of legal norms, raises a set of typical questions. A prominent among them are: How is law generated? What forces in society influenced or created particular kinds of law? What makes a system of law out of a vast and heterogeneous mass of normative materials? By what concepts and criteria can we identify the existence of a legal system? While the second conception of legal system warrants a study of institutional behavioral patterns and roles of the lawmakers (Legislature), law interpreters (Judges), law-enforcers (the police), law-breakers (wrongdoers) and law-compliers (law-abiders) and their influence, individual or cumulative, in the legal system and legal processes. The third one addresses to the inter-relationship (supportive or otherwise) between the formal (legal) rules and (informal) non-legal rules (such as religious, indigenous, or customary norms) in shaping law as social control system.
Further, it is necessary to recall, in brief, some of the philosophical explanations of law as they have a significant bearing on the social dimension or context of law. These explanations look at law in its working and the myths about functioning of law and truth about its role (Adam Podgorecki, Law and Society (Routledge & Kegan Paul, London, 1974) 4). The basic tenet of Marxian approach to law is that ‘law’, though social system structures it, is an instrument in the hands of the classes in power to use it to protect their own interests. The class in power uses law to exploit powerless classes. While Roscoe Pound insists that law is an instrument of social engineering. He asserts that law can be an effective tool for establishing an egalitarian social order.
Traditionally, the first dimension of legal system, namely law as a system of norms, is the domain of academic lawyers; the second one, i.e. law as a system of social behavior, is of sociologists, and the third one is of social anthropologists (Upendra Baxi, Socio-legal Research in India-A Programschrift (Indian Council of Social Science Research (ICSSR), New Delhi, 1975)). These three dimensions of a system of law, in ultimate analysis, broadly speak of normative character of law (or perceive law as system of norms) and of social context (or sociology of law) of law. It treats law as a means to define an end. The traditional perception of law as a system of norms concerns with analytical-linguistic study of law while the sociology of law highlights the ‘social context’ of ‘law’.
ROLE OF LAW IN A PLANNED SOCIO-ECONOMIC DEVELOPMENT
A contemporary modern state, which endeavors to bring socio-economic transformation envisaged in its Constitution, assigns a catalyst role to law. It strives to bring such a transformation through a cluster of social welfare legislations enacted in pursuance of its constitutional objectives, policies and perceptions.
For example, a careful look at the well-articulated ‘economic objectives’, ‘social objectives’, and ‘environmental objectives’ embodied in the FDRE Constitution6 reveals laws’ role in accomplishing them. The Government, inter alia, is duty bound to ensure that all Ethiopians get equal opportunity to improve their economic conditions and to promote equitable distribution of wealth among them and to deploy land and other natural resources for the common benefit of the People and development. It has also to make endeavor to protect and promote the health, welfare and living standards of the working population of the country. The Constitution also obligates the Government to provide special assistance to Nations, Nationalities, and Peoples least advantaged in economic and social development. The Constitution also envisages Ethiopians access to public health and other basic amenities. It assures them of a clean and healthy environment. All these constitutionally contemplated prescriptive obviously assign a greater role to ‘law’ in their accomplishment.
