Doctrinal legal research: antecedents and future development

Author: Iloka Benneth Chiemelie
Published: 10th April 2017

It is obviously understandable that different concepts of legal doctrine can be used to reference different methodologies[1]. If one is to accept legal doctrine as mainly being a hermeneutical field, which is the best case when talking about legal discipline as has been adopted majority of the time under legal settings, the person could present detailed description of doctrinal research method as:

Empirical data (such as cases, statues etc.) being gathered by legal scholar, the scholar developing word hypothesis in relation to the data meaning and scope, testing the hypothesis, adopting the fundamental views of interpretation. Once that is done, they are expected to move into the next stage of building theories (for instance, the direct binding forces of EU), they test these theories and develop new hypothesis from such tests. When described in this way, it is clear that doctrinal research does fit will with methodologies adopted in other disciplines; as it can be said that in broad perspective, scientific inquiry does define the two perspectives highlighted. The first is based on ascertaining and discovering facts, while the latter is based on constructing hypothesis and theories.

Within the first stage of the research process, legal doctrine gathers all important materials as:

·         Normative sources like statutory texts, general principles of law, biding precedents, treaties, customary law and so on; and

·         Authoritative sources like case law (in cases where they are not binding precedents), and scholarly legal writings[2].

The last category does demonstrate more of an ambivalent position, because it is not considered to be different from legal doctrine, when if individual researcher consider it to be external from normal research. However, the legal system is faced with difference scholarly legal writings are the foundation for developing authorities of law on the one hand; and on the other hand, legal doctrine as the scientific community with different discuses (except in cases where rejections are made in relation to proposed theories).

From a general view, presenting discussions about legal sources would be considered very important. For instance, if statutory texts have been unconstitutionally declared by the Constitutional Court, it will be considered an illegal section of a given empirical data which the researcher will adopt as the basis for setting hypotheses or theories. This will make a binding precedent to be considered more relevant than a non-binding one[3]. Additionally, a non-binding decision passed by the Supreme Court will be considered more relevant than the same decision passed by a lower court. A publication made by a law professor that is viewed as a heavyweight in the field will be considered more important than a publication made by a fresh young graduate.  Well discussed argument will be considered more important than making a case without necessary and supporting arguments.

In the case of normative sources, relevance of such discussion will be considered in relation to how the first instance is valid: with questions like whether the rule is currently part of an existing legal system or not. This is a two way choice between valid and non-valid arguments[4].

When a legal researcher reaches the stage of interpretation, such could turn to become a matter of degree: in cases where the normative forces are being weighed and balanced with equal validity rules and principles, one of the findings could be viewed as more significant than the other, even when the one with higher relevance is limited to present case being reviewed.

Considering the relevance of authoritative sources will always be done in a matter of degree. This is because even the most important professor could have certain level of weakness, while the first publication made by a promising young scholar could turn out to be very brilliant. This is why it is possible that the decisions of a Supreme Court can be widely rejected by a lower judge and legal doctrine, and this can result to the court losing a large part of its relevance. For instance, a decision made by an American Supreme Court with 5 to 4 majority can be less authoritative when compared a unanimous decision.

In any case, it is important to note that all of these sources have certain levels of attached relevance and the researcher should ensure that they are all put into consideration during the research process. This is a very delicate point when it comes to measuring representativeness of published case laws. This is because the actual publications of judicial proceedings and decisions is just a small fraction of the actual output. In recent years however, the internet has made a higher percentage of such accessible. Discovering have made it clear that anecdotic motives does in some cases play significant stronger role when it comes to finalizing decisions on whether or not one should publish. In such case, controversial decisions are more easily published than those that are in conformity with set standards and approaches. Even the decisions of the Supreme Court are not all published. Thus, future development should be such that adequate electronica storage system is adopted in order to allow for all judicial decisions to be published. Such technologies should also include appropriate computer programmes and database that allow for a systematic study of legal decisions taken in relation to certain fields or problem files – together with statistical analysis. However, up till this point, this is still not adopted across legal settings. The gap between antecedents and future development of doctrinal research needs to be bridged as such will increase access to necessary judicial proceedings, rulings and decisions that are very vital in the development of both legal hypothesis and theories[5].

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[1]  E Nagel, ‘The Nature and Aim of Science’ in S Morgenbesser (ed), Philosophy of Science Today

(New York, Basic Books, 1967) 3–13, 10.

[2]  See on this: W Twining, Blackstone’s Tower: The English Law School (London, Sweet &

Maxwell, 1994) 134

[3]  See, eg: A André, ‘Was heisst rechtswissenschaftliche Forschung?’ (1970) Juristenzeitung

396–401, 400; H Albert, Traktat über rationale Praxis (Tübingen, JCB Mohr, 1978) 80; A Aarnio,

Philosophical Perspectives in Jurisprudence, Acta Philosophica Fennica no 36 (Helsinki, Academic

Bookstore, 1983) 163–84 (On the Truth and Validity of Interpretative Statements in Legal Dogmatics).

Compare: ‘Seen in the perspective of time all statements of the law, whether by the legislature, or by

judges, or by jurists, are no more than working hypotheses.’ Lord Goff of Chieveley, ‘Judge, Jurist

and Legislature’ (1987) 2 Denning Law Journal 79–95, 80.

[4]  AD De Groot, Methodologie, 3rd edn (The Hague, Mouton, 1966) 42.

[5] Mark Van Hoecke. 2011. Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Online: http://www.ius.bg.ac.rs/prof/Materijali/jovmio/DS_PrimeriMetodoloskihPristupa/van%20Hoecke%20(ed.),%20Methodologies%20of%20legal%20research%20_%20which%20kind%20of%20method%20for%20what%20kind%20of%20discipline.pdf