Research Methods: Doctrinal Methodology

Doctrinal (or “black letter”) methodology refers to a way of conducting research which is usually thought of as “typical legal research”. A doctrinal approach to research will focus on case-law, statutes and other legal sources. It differs from other methodologies in that it looks at the law within itself; a pure doctrinal approach makes no attempt to look at the effect of the law or how it is applied, but instead examines law as a written body of principles which can be discerned and analysed using only legal sources.

Strengths

A strong doctrinal analysis will be the starting point for much legal research. The doctrinal methodology can encompass any form of purely legal analysis, including the history of law (e.g. Roman law), what the law was previously, what the law is now and whether there are indications as to how the law might be evolving or developing. It is often associated with positivist legal research – the law is what the law says it is, rather than examining the morality or effectiveness of the law – and this is both a strength and a weakness. In legal research, a doctrinal focus is often a good starting point, but a lot of legal research will need to take analysis further than a purely doctrinal approach.

Challenges

The doctrinal methodology is often criticised for being disconnected with reality – by focussing on legal sources it often doesn’t question or challenge the application of the law, but instead analyses the law only in terms of internal consistency. Nevertheless, doctrinal analysis should underpin most legal research, as a strong doctrinal analysis to establish what the law is is often a necessary precursor to researching other legal questions – particularly in areas where the law is uncertain or evolving.

Method

Undertaking doctrinal research typically involves source-based research and it would be unusual to undertake qualitative or quantitative research under the doctrinal methodology. Doctrinal analysis will focus on traditional legal sources, such as case law. Despite this, it is not impossible to exclude doctrinal analysis from other methods. For example, the Big Data for Law project used qualitative methods to analyse the language and language use of statutes. (Whilst the project had other, non-doctrinal goals, the aim to analyse statute language use is a function of doctrinal research).

Overview

Doctrinal research is one of the fundamental methodologies of legal research, but increasingly research looks beyond pure doctrinal analysis. A familiarity with conducting doctrinal analysis therefore remains fundamental to any legal research project, but most projects will require moving beyond doctrinal analysis to utilise other methodologies. A review of some of these methodologies will follow in the coming weeks.

Advertisements

Quick Tip #1 – Westlaw searches

Quick Tip: –

If you are struggling to find information on Westlaw because your search is turning up too many results, try using the Westlaw subject hierarchy. This allows you to search journal articles, cases, legislation etc using the subjects which the document has been tagged with. It’s a considerably more exact way of searching than, for example, a keyword search.

It’s also very simple to use:

westlaw1

westlaw2

westlaw3

westlaw4

westlaw5

westlaw6

Essay Structure

In this post, you can access an example of an LLM essay:  Example essay

This essay has been annotated to give an explanation of how essay structure has been used to answer the question. It must be stressed that there are many ways to structure an essay, and that a lot will depend on your personal writing style, the topic and the argument/s you wish to build. This example is intended only to show how structure may be used to form an answer, and illustrate the importance of structure within essays.

Please note: If you have problems downloading the essay, open the folder containing the download, right click on the file, and open with Microsoft Word.

If comments aren’t appearing on the right, you can click on the comment icon and this will open the comment bar.

Using Parliament.uk

As promised, another post on Parliamentary sources – this time, a quick guide to using the official website of Parliament.

You will find most of the Parliamentary material you need hosted on the Parliament website. This post will focus on how to use the website, and therefore assumes a basic knowledge of different Parliamentary bodies and procedures. (You can see the Parliamentary dictionary if some terms are unfamiliar.)

Parliamentary business is most often found in Hansard, the official record of Parliament. This can be accessed through the homepage, or by using this link. From here there are a number of options. Some of those most likely to be useful are explored below:

  1. Commons and Lords Hansard

This can be accessed by clicking the link on the main page:

hansard1

There are then a number of searches which can be performed. It is possible to do a general search within Hansard for a specific term – for example “benefit sanctions” – which will bring up a list of all items where this term is found:

hansard2hansard3

The drop-down menus on the main page also bring up a number of ways to search which may or may not be useful to your research. For example, “Browse MPs/Peers” allows you to search for contributions from specific people:

hansard4hansard5hansard6

  1. Written Questions and Answers and Written Statements

Again, this can be accessed by clicking the link on the main page:

hansard7

This will then bring up a search box which offers various options for searching. Most of these are self explanatory:

hansard8

It is also possible to search written statements, and the daily reports by date:

hansard9

hansard10

  1. Hansard archive

The Hansard pages discussed above only contain content for 2010 onwards. For pre-2010 content you will need to use the archives for the Lords and Commons.

  1. Other useful links

From the Parliament homepage, it is also possible to access a wide range of further documents and information. The easiest way to find these is simply to explore the website. If you are unfamiliar with Parliament, the ‘About Parliament’ section of the website may be a useful place to start:

hansard11

You will also need to be familiar with the ‘Parliamentary business’ section:

hansard12

Parliament is not always the most obvious resource to use in legal research, but it can often be a rich source of information for a number of different resources. For example, debates and Committee scrutiny of Bills may provide useful information on Legislation you are discussing in your research; Committee inquiries, debates and Early Day Motions can often provide analysis and examples of a law in operation; written answers are a good source for statistical data on specific subjects. It may be worth searching the Parliamentary website during your research to help provide secondary material and analysis.

A Parliamentary Dictionary

This post is intended to give a brief overview with useful links to some of the terms which you may come across when using Parliamentary sources. There is a full glossary available on the Parliamentary website. The next post will give a guide to using the Parliamentary website.

Bill  – A series of proposals introduced to Parliament to amend, repeal or create a piece of Legislation.

See also:

Draft Bills 

Public Bills 

Private Bills 

Private Members’ Bills 

Hybrid Bills 

Cabinet – Leading ministers who are responsible for the operation, policy and running of government departments.

Committees – Committees of either the House of Commons, House of Lords or Joint Committees of both Houses perform a scrutinising role. They examine Bills and recommend amendments, hold inquiries to produce reports and scrutinise topical or specialist issues. Which work they undertake depends on the nature of the Committee.

See also:

Legislative Committee 

Select Committee 

Delegated Legislation – Regulations made by individual ministers under powers granted by primary legislation.

See also:

Statutory Instruments 

Devolution – A grant of limited power away from Parliament to other law-making bodies, for example the Scottish Parliament, Northern Ireland Assembly or Welsh Assembly.

Gunpowder Plot 1605 – A failed plot by Guy Fawkes and other conspirators to blow up the Houses of Parliament.

Hansard – The official report of proceedings in the Houses of Parliament.

Henry VIII clauses – Clauses in primary legislation which allow for amendment or repeal without further Parliamentary scrutiny.

House of Commons – The elected chamber of Parliament. It is made up of Members of Parliament who belong to a certain political party or sit as an independent. The major parties in the Commons are: the Conservative and Unionist Party (Conservatives), the Labour Party (Labour), the Scottish National Party (SNP), the Liberal Democrats (Lib Dems).

House of Lords – The unelected chamber of Parliament. It is made up of Peers, who are nominated to the Peerage by the Prime Minister and ennobled by the Monarch. They may sit under the whip of any of the parties, or as an independent.

Legislation – Law which has passed through both Houses of Parliament and received Royal Assent.

See also:

Acts of Parliament 

Delegated Legislation 

The Parliament Acts 

Member of Parliament (MP) – A representative elected under First Past the Post to represent their constituency in the House of Commons.

See also:

AM – Assembly Member (Wales) 

MLA – Member of the Legislative Assembly (Northern Ireland) 

MSP – Member of the Scottish Parliament 

Opposition – The official opposition to the government, made up of the largest party other than the governing party.

Parliamentary Privilege – Certain immunities which apply only within the Parliamentary estate.

Royal Prerogative – The powers given to the Monarch under the constitution.

Shadow Cabinet – The opposition equivalent to the cabinet, who hold cabinet members to account.

Written Questions – Questions tabled by ministers in writing, to which written answers are given.

Using Microsoft Word – Referencing

This is a basic guide to useful Microsoft Word features when using OSCOLA referencing, the referencing system used for the UWE LLM course. It is intended to be a basic introduction, with helpful tips and links. It is strongly recommended that you become familiar with OSCOLA as early in the course as possible, as this will save you many hours of frustration when trying to reference.

  • OSCOLA Referencing

The first thing to know is that there is no automatic way of inserting OSCOLA referencing. Instead, each time you wish to cite a source, you must put a footnote after the point you wish to make.[1] To do this, simply click on the ‘References’ tab on the top bar, then click ‘Insert Footnote’:

msref1

You can then type in any information which you wish to include. In terms of OSCOLA referencing, the best way of finding out how to reference particular sources is to refer directly to the OSCOLA guides. The full guide can be found here.

If you haven’t used OSCOLA before, it is best to familiarise yourself with it by using the full guide to begin with. There are a number of nuances, such as where commas go or if a comma is used, that you will need to be familiar with. If you know OSCOLA fairly well and simply need to refresh your memory for a particular source, there is a quick guide here.

Under the OSCOLA referencing system, the format of a reference is different in the Bibliography from footnotes, therefore make sure you have double-checked your references are correct for both styles. For example, a source in the Bibliography begins [Surname] [Initial] for the author, whereas in a footnote the author is listed as [Full first name] [Surname]:

Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (Hart Publishing 2007) – footnote                                                                

Fisher E, Risk Regulation and Administrative Constitutionalism (Hart Publishing 2007) – Bibliography [2]

Bibliographies take a specific format, that is a table of cases, a table of legislation, then the bibliography. UWE’s example OSCOLA bibliography can be found here. (This is a PDF download, you will find it in your downloads folder after clicking the link)

As with footnotes, there is no automatic way to build a Bibliography in Word. Instead, best practice is to keep a full list of all sources you have used during your research, either in a separate document or at the end of your work, to include as a Bibliography after the main text of your assignment.

  • Formatting

Under the OSCOLA referencing system, quotes have to be formatted in a particular manner. If the quote is less than three lines long, ‘[i]ncorporate quotations of up to three lines into the text, within single quotation marks’.[3] Where a quotation is longer than three lines, it must be presented as fully indented:

Present quotations longer than three lines in an indented paragraph, with no further indentation of the first line (examples 3 and 4). Do not use quotation marks, except for single quotation marks around quotations within quotations (example 3). Leave a line space either side of the indented quotation.[4]

The easiest way of ensuring consistency of formatting throughout a document is to create a new “style”. To do this, go to the ‘Home’ tab and under ‘Styles’ sub-tab select the drop down arrow and ‘Create a style’:

msref2msref3

This will bring up a text box. Select ‘Modify’:

msref4

This will then bring up a number of options for creating your own style of text formats. Firstly, choose a name you will remember, eg ‘OSCOLA quotes’. Under ‘Formatting’, you will then see that there is an option ‘Format’ which brings up a drop down menu:

msref5

Select ‘Paragraph’ and under ‘Indentations’ change this to the margins you wish to use for your OSCOLA quotes:

msref6msref7

Select ‘New documents based on this template’ and then click ‘OK’:

msref8

  • Contents and Indexing

The other feature which you may find it useful to know, particularly for longer pieces of research, is how to create an index or contents page. Word does have tools which will allow you to do both automatically. Huge detail won’t be provided here as these are unlikely to be useful to you at LLM level, but you should be aware of these for future academic work.

To create an index, go to ‘References’ then ‘Insert Index’:

msref9

For a full guide on how to use this feature, you can use the Microsoft support page.

Under ‘References’ you will also find ‘Table of Contents’:

msref10

Again, there is a Microsoft support page where you will find full details of how to use this feature.

You will quickly find, as you begin to research and use references, the most common features that you need to use in Word. There are full guides available online for all of Word’s features, so it is always worth Googling if you have a problem, but it is also worth familiarising yourself with this before the pressures of coursework begin.

[1] Like this!

[2] Example taken from the full OSCOLA guide

[3] Full OSCOLA guide, 8

[4] Full OSCOLA guide, 8

Using HUDOC – a basic guide to searching for judgments from the European Court of Human Rights

HUDOC is the database of judgments from the European Court of Human Rights (ECtHR). If you know the name of the case you wish to read, it is often quickest simply to run a Google search – you will often have to use “[case name] HUDOC” in order to get a result from HUDOC and not from other sources – but there are also a number of useful ways of searching HUDOC if you are beginning research or searching for new cases.

How wide you wish your search to be, how many sources there are, and any constraints on your search will often determine the best way to approach the resource. On the HUDOC home page are a number of different filters to begin searching, and it would be impractical to go through them all. The best way of learning to search HUDOC is simply to play around with it. But there are some basics which will make your research in HUDOC much easier.

  • Language filters

Judgments from the ECtHR are available in a variety of languages, predominantly English and French. Being monolingual, I always begin any search by selecting the English language filter – cases not available in English are, unfortunately, not going to help my research:

hudoclanguage1

More than one language filter can be selected. Each time a filter is selected the list of cases will update itself automatically.

  • Article filters

As with language, it is also possible to filter by the Article of the European Convention that you are interested in:

hudocarticle1

Clicking on ‘More’ will bring up all of the possible filters:

hudocarticle2

For example, here is the list of cases where “English” and all of the “Article 4” filters are selected:

hudocarticle3

  • Other filters

There are a number of other filters under the left hand sidebar “Narrow Your Search”. These include by the court giving the judgment, by whether there was a violation found or not and by the country defending the case. All of these may be more or less important depending on the nature of your research. Language and Article are likely be the two filters you most frequently use, however.

  • “Sort by”

In the top right hand corner is a drop down menu for how cases are sorted:

hudocsortby

Relevance is likely to be the most useful search for general research, but other options may be helpful. For example, if you know that domestic law fundamentally changed after a certain date, cases brought under the old law may not be relevant, so Sort by: -> Date (newest) might be a more helpful option.

  • Advanced search

Clicking the “Advanced Search” link in the top right hand corner brings up a number of further options to use alongside, or instead of, the filters:

hudocadvancedsearch

There are small grey question marks next to each field, and hovering over these will bring up further information on what each field searches for. It’s worth becoming familiar with this before beginning research, as this is likely to provide the most focussed searches.

For any questions on how to use HUDOC, the best place to start is with their FAQs. But a knowledge of basic filters and searches should be enough to find relevant ECtHR judgments within HUDOC for your research.