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.

Some Bizarre Christmas Laws

As a sign off for the end of this term, here are three current (and one previous) law which might affect how you enjoy Christmas in England and Wales:

  1. You cannot shoot birds on Christmas Day
    The Wildlife and Countryside Act 1981 prohibits the shooting of birds, subject to certain exceptions. Under s.2(3) those exceptions don’t apply on Christmas day. Thus, shooting birds on Christmas day is prohibited.
  2. If you breach an injunction on Christmas Day, you will be held in custody for longer than otherwise
    This is under s.9(4) of the Anti-social Behaviour, Crime and Policing Act 2014. s.9 holds that no-one arrested for breaching an injunction can be held for more than 24 hours without being brought before specified people, but under s.9(4) the period of 24 hours is to be calculated disregarding Christmas day.
  3. It’s illegal to be drunk in a pub
    If you are planning to go to the pub on Christmas day, be aware that s.12 Licensing Act 1872 made it an offence to be drunk on licensed premises.
  4. Make sure your Christmas tree isn’t dangerous
    If you cannot get your Christmas tree home safely, be thankful for the Deregulation Act 2015. The Town Police Clauses Act 1847 prohibited under s.28 “any tree or timber or iron beam to be drawn in or upon any carriage, without having sufficient means of safely guiding the same”. The fine could be up to £1,000. Thankfully, schedule 23 part 9 of the Deregulation Act 2015 repealed these provisions.

Happy holidays!

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:

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Plagiarism – and how to avoid it

It was brilliant to see some of you at the workshop on plagiarism yesterday. Here are the slides on plagiarism: Plagiarism and good academic practice

The key things to note are:

  • Plagiarism includes intentionally stealing someone else’s work, or unintentionally copying it without acknowledgement by not following good referencing guidelines
  • Collusion (working with another student, or copying their work with or without their knowledge) is an academic offence
  • It is also an offence to pay someone to write all or part of your coursework
  • You can self-plagiarise – never submit all or part of the same assessment more than once
  • Plagiarism can be avoided by the correct use of OSCOLA. This includes:
    • Knowing when to use quote marks or OSCOLA quote formatting (see the guide to Using Microsoft Word – Referencing)
    • Knowing when to put a reference in your text
    • Keeping a full Bibliography

There is further detail on all of these issues in the slides. For a full example of the use of referencing and good academic practice, see the Essay Structure guide.

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:

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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:

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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:

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  1. Written Questions and Answers and Written Statements

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

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

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

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  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:

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

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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.