Research Methods – Comparative Methodology

Today’s blog post is written by guest blogger – Shilan Shah-Davis who is a Senior Lecturer in the Department of Law, UWE. She is also a member of the Research Methods teaching team, so she is very well placed to write this blog post!

Introduction

Various legal research projects do contain some form of comparison. But it is important to note that not all forms of comparison is comparative legal research.

What are the characteristics of comparative law?

True comparative legal research falls within the ambit of comparative law. Although not a distinct body of law in itself, comparative law entails the comparison of laws between different legal systems to identify and measure the similarities and differences. In other words, a researcher carrying out comparative legal research will compare the law(s) of one country to that of another country (but in can include the comparison of the law(s) of more than two countries) and carefully assess the similarities and differences and what the commonalities, differences and divergences reveal.

What is the purpose of comparative law?

So, what is the purpose of comparative law i.e. why compare different legal systems? There are a range of aims attributed to comparative law. Örücü, for example, explains that the purpose of comparative law may include providing a critical perspective into different legal practice(s), helping courts fill gaps in the law, facilitating unification and harmonisation of laws, assisting law reform and policy development, etc.[1]

 

These divergent aims of comparative law can be roughly grouped into three broad categories:

  • Using comparative law as an instrument of learning i.e. understanding foreign law and culture.
  • Using comparative law as a means to contribute to our own law and culture by understanding it better through the process of comparison to another.
  • Using the comparative approach as a mechanism to devise universal principles of law / to achieve harmonisation of law.

Criticisms of comparative law

Through the diverse range, and proliferation of, scholarship produced, comparative law has undoubtedly provided vast amounts of knowledge. That being said, various scholars[2] have criticised traditional comparative legal scholarship. It is argued that comparative law’s obsession with, and attendant search for, similarity and harmonisation of laws is unrealistic in a legal universe dominated by complexity, ambiguity and heterogeneity. Similarly, there are issues surrounding the failure of traditional comparative law to go beyond a mere description / collocation of laws and to strive for true comparison and analysis (e.g. taking into account cultural dimensions); the problem of ‘legal transplants’; and the dominance of Eurocentrism in comparative law. Thus, such scholars, whilst still valuing the importance of comparative legal research, question the traditional premises, goals and approaches of comparative law.

Notwithstanding, van Hoecke stipulates, ‘In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative law (or not)’[3].Thus, when carrying out comparative research, it is imperative that there are clear aims and objectives which depict the purpose of comparison.

Another question which is commonly asked is how does one compare the laws of different legal systems? There are two aspects to this:

  1. The level of comparison; and
  2. The approach taken to compare.

In terms of the level of comparison, the classical distinction is that this can be carried out at a macro or micro level i.e. macro-comparison or micro-comparison. Macro-comparison is concerned with comparing legal systems in their entirety, whereas micro-comparison occurs when specific laws, institutions or problems are compared between the different legal systems.

The functional vs. cultural approach

With regards to the approaches taken to compare, comparative legal research has been traditionally dominated by what is called the ‘functional’ approach. The functional approach focuses on the ‘way practical problems of solving conflicts of interest are dealt with in different societies according to different legal systems’[4]. Here, the premise is that the function of law lies in responding to problems and all most, if not all, societies in essence face the same problems. Consequently, this makes it possible to compare laws and legal institutions, even if they display different doctrinal structures, as long as they fulfil the same function, they are ‘functionally equivalent’.

Another, and perhaps more recent, approach that finds prominence in comparative legal research is the ‘cultural’ comparison approach (sometimes called comparative legal cultures). This approach stems from a post-modern platform and questions the ‘time-honoured principle of functionality by pointing to its systematic bias towards in favor of like solutions and to its inherent insensitivity towards difference’[5]. Cultural comparatists reject the idea of the reduction of law to its function, and instead view national law as an expression and development of the general culture of a society à legal culture. Here, the premise is that the law cannot be clearly understood without understanding the culture in which it sits. Therefore, emphasis is on exploring and understanding the assumptions, values, thought processes and predilections of other cultures in order to understand the concepts, beliefs and reasons behind the law(s). As advocated by Grosswald-Curran, the researcher must engage in ‘cultural immersion’[6]. This ‘requires immersion into the political, historical, economic, and linguistic contexts that molded the legal system, and in which the legal system operates. It requires an explanation of various cultural mentalities’[7]. Moreover, several cultural comparatists reject legal unification as both impossible and undesirable, promoting instead, tolerance for foreign law and for difference in general.

When considering the utility of the comparative approach in the context of a legal project, another issue which needs to be borne in mind by the researcher is whether the approach will be used as a methodology or a method (or both) in the project. When used as a methodology, the comparative research must constitute the overall aim/purpose of the investigation and study.

Footnotes

[1] E Örücü, ‘Developing Cpmarative Law’ in E Örücü and D Nelken (eds, Comparative Law: A Handbook (Hart 2007) 44.

[2] See e.g. G Frankenberg, ‘Critical Comparisons: Rethinking Comparative Law’ (1985) 26(2) Harvard International law Journal 439; H P Glenn, ‘The Aims of Comparative Law’, in J M Smits (ed), Elgar Encyclopaedia of Comparative Law (Edward Elgar 2006); V Grosswald Curran, ‘Dealing in Difference: Comparative Law’s Potential for Broadening Legal Perspectives’ (1998) 46 American Journal of Comparative Law 657; W Twining, ‘Globalisation and Comparative Law’, in E Örücü & D Nelken (eds), Comparative Law. A Handbook (Hart 2007).

[3] M Van Hoecke, ‘Methodology of Comparative Legal Research’ (December 2015) Law and Method, 2

http://www.bjutijdschriften.nl/tijdschrift/lawandmethod/2015/12/RENM-D-14-00001#content_RENM-D-14-00001.ID2213-0713_0003

[4] Ibid 9.

[5] M Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ (2000) 50 American Journal of Comparative Law 671, 681.

[6] V Grosswald Curran, ‘Dealing in Difference: Comparative Law’s Potential for Broadening Legal Perspectives’ (1998) 46 American Journal of Comparative Law 657, 659.

[7] Ibid 661.

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Satisfying Assessment Criteria with a Restrictive word Limit

This is a short post aimed predominantly at those of you on the International Banking and Finance Law module, but also, hopefully, useful advice in general for constructing arguments and satisfying the assessment criteria.

Question:       “I am not able to answer the blog questions as the issues discussed are too broad and cannot be answered within 583 words!”

Critically consider this statement, and demonstrate how a blog answer can be achieved within 583 words.

Answer:

A blog answer can be completed in 583 words, the answer should have 1 principal argument, supported by 2 main points; this reduces the size of the answer, while still satisfying the assessment criteria, further by selecting 2 arguments relevant to the main argument, the answer may be focussed and concise. If required, a very short definition may be provided in the introduction, but it may be more beneficial to refer the reader to a definition using a reference.[1]

Having a clear statement at the beginning of the answer will tell the reader which issue the answer will address; this immediately begins to fulfil criterion 1 of the assessment criteria; identifying the key concepts and legal issues.[2]  This approach also helps to create an engaging answer. For instance, Jackson and Newberry argue that “the purpose of an argument, and thus an argumentative essay, is to convince the reader of some- thing, an inviting and compelling introduction is vital.[3] Jackson and Newberry claim this is to demonstrate the importance of the issue and to make it clear to the reader what point the essay will make.[4]

Secondly this approach will begin to demonstrate analysis and evaluation; having identified the concept, the issue is then framed by 2 arguments that support the conclusion. In considering just 2 supporting points this will naturally limit the length of the answer, but still allow around 150 words to explore the argument.

When only a limited number of words are available, being able to focus on the relevant points is vital; only selecting the 2 most relevant points will allow the essay to be focussed, only discussing those points supporting the main argument. By labelling these 2 points and keeping them in mind when writing the answer, losing focus may be avoided. The skills required for successful blog answers include being concise; the marker is fully aware that the answer will not, and cannot address the entire issue. When selecting 2 points, ensure these points support the main argument of the essay, or select one supporting point and one counter point, the important point here is that the 2 supporting points relate directly to the main argument of the essay. An answer can make reference to additional issues to demonstrate awareness, but the bulk of the word count should be prioritised to the 2 main points.

If the essay is to cover additional points these should only be summarised, this would naturally come before the conclusion or as part of it. In order to write a high scoring answer, the writer will need to demonstrate originality and creativity.[5] This can also be demonstrated within this framework as the writer can show these skills through the argument they choose to make. A well thought out main argument, supported by 2 main points can “evidence an ability to independently appraise knowledge.[6]

In selecting 2 points to support a main argument it can be seen that the assessment criteria can be satisfied; by following this format the writer can be analytical, also demonstrating originality and creativity. Secondly the essay can remain focussed on the issue set out by the author; as well as setting a clear structure for the reader, and the use of 2 key points can focus the mind of the writer too, allowing them to be concise. Keeping to a simple structure will allow the writer to clearly convey an argument, and if they choose to, still inform the reader that there are other elements to the issue.

 

[Word Count – 582 Words]

[1] For more on what a critical blog is see C. Jones, ‘How to write a critical blog’ <https://blackboard.uwe.ac.uk/bbcswebdav/pid-5167762-dt-content-rid-9932985_2/xid-9932985_2&gt; accessed 07 November 2016.

[2] E. Grant and L. Singh-Rodrigues, LLM Programme Handbook (UWE, Bristol, 2016) at p.64.

[3] D. Jackson and P. Newberry, Critical Thinking: A User’s Manual (Wadsworth Cengage Learning, 2016) at p.287.

[4] Ibid.

[5] Criterion 4 of the assessment criteria: E. Grant and L. Singh-Rodrigues, LLM Programme Handbook (UWE, Bristol, 2016) at p.64.

[6] Ibid.

Planning and Organising Research – Henry’s Approach

img_20161006_093517Dealing with the blank page!

My main issue when starting a piece of work is the blank page, being at square 1 with no words on paper frustrates me.

I am going to deal with things in three broad areas as the way I write can generally be split into a spider diagram/word cloud stage, which leads into a skeleton writing stage and finally a fleshing out stage. I also like to change the scenery in which I work in from time to time, I sometimes attend shut up and write sessions, or just work in a café as the change of environment can help me focus.

Prior to any writing, I need to read, and I will read a variety of sources; my PhD research concerns virtual currencies and money laundering, so my reading can be quite wide, and because my research concerns government policy, I often start with government commissioned reports proposing changes in the law, or new laws, as there are very few relevant laws applicable to virtual currencies.

Amy suggested a list of questions she asks herself when starting research; my approach is similar, if a little less formal, and I start by re-reading the question, if there is one, and jotting down a few key terms or objectives of the piece of writing. These key terms will assist me when I am undertaking my broad Westlaw search, similar to Coralie’s. I will first determine if there are primary sources I need to read, then I will use my key words to search Westlaw for relevant journal articles, I will then widen my search to the library database using similar key terms.

 

Spider diagrams and Word Clouds

img_20161011_091717

When I am reading I find it helpful to write key points down, I often do this in the form of a spider diagram or word cloud. This allows me to group similar points from multiple authors in naturally forming clusters on a page, which in turn can assist me in determining the key arguments I will make in my writing. A further benefit to this method is that I find I am more likely to understand/remember something if I have physically written it out; this may sound strange, but the tactile nature of hand writing my thoughts, or the key points of an article, helps it stick in my mind. I will organise my ideas on the page and also use colours to group ideas on the page, as you can see from my messy example above.

Once I have completed my main reading, I use the spider diagrams to begin to plan the essay; I will often number the clusters of words, which will then form sections of my essay. Having the plan in this form allows me to physically organise my thoughts on the topic and I can draw links between these thoughts, which helps me to formulate my arguments; this is really important as it makes it easier to analyse a topic. Once I have my numbered and linked spider diagrams I will move on to the skeleton stage.

 

Skeleton stage

skeletonThe skeleton stage is simply my spider diagrams in a linear form, I will set out my essay in bullet point form, with each numbered key point forming a heading in my work. Under each heading I will set out the points I wish to make under that term and I will include any quotes I wish to use, adding references for them as I go. Once I have completed this for each heading I will have a skeleton of my essay. I will play my conclusion at this stage as well, it will be clear from my plan which points I will make in the conclusion of my essay. It will not be in full prose, but my main points will be visible, at this point my skeleton needs meat adding to the bones. I SAVE A COPY OF MY SKELETON ARGUMENT NOW!

 

Fleshing out

The fleshing out stage simply means expanding my skeleton points into full sentences. I find it helpful to change the colour of the skeleton argument to another colour, usually red, and then I will write my essay around this red text. The red text forms a checklist for me to follow; I will only delete the red text when I am happy that I have addressed the point I wanted to make in the red text. This keeps my essay plan highlighted in my document to prevent me from deviating from the plan. While I will delete the red text as I have addressed each point, I will keep and refer to my saved skeleton essay plan when I am proof reading the essay.

 

Tying the Introduction and Conclusion

I will not write my introduction until I have drafted all other sections, this may sounds backwards but the point of the introduction is to guide the reader through what they are about to read (or in some cases for them to decide if they will read it at all) and therefore I am in the best position to do this once I have written the text the reader needs to be guided through. I will also ensure I link my introduction to the conclusion; ensuring I have addressed the questions I aim to answer, this is an easier way, as I am framing the questions after I have answered them.

 

Take a break!

This process does not take place in one sitting, I need to step away from my research, contemplate, and come back to it again. I advocate stepping away from your work for a number of reasons, firstly you will lose concentration if you try to do it all at once, and if you don’t lose concentration in that time it’s likely you have not spent long enough doing it. Secondly, you think more about things without thinking than you think… This sounds stupid, but taking a break, and thinking about something else, can often lead to you quietly solving a problem you had with your work. I find cycling works for me to go out and think about very little, other forms of exercise are great too, but it doesn’t need to be exercise, it could be cooking, eating, reading, watching countdown, whatever allows you to relax.  Thirdly, by coming back to your work with fresh eyes you will see your mistakes and see new links; I always need to re-read my work a day after finishing writing, the gap in time allows me to see the small errors I do not see because I am so familiar with the text. This is best done by printing your work off if you can; it’s much easier to spot errors on a page rather than a screen.

 

Conclusion

People write in different ways, this is a way I find works for me, my main bits of advice are to always fully plan before you write the essay, take plenty of breaks, and by writing things down I find I can see my thoughts and I am not looking at a blank page.

Meet the Team – Henry

img_20160829_124432-2

My name is Henry Hillman (I’m the one on the right) I am a PhD Candidate at UWE Bristol and Associate Lecturer at UWE Bristol. I have been at UWE for longer than I care to remember, I completed my LLB and LLM at the University I teach in Commercial Law, Business Law, and International Banking and Finance Law. My research interests are banking regulation, bank sanctions, virtual currencies and money laundering. My PhD research concerns the vulnerability of virtual worlds to money laundering abuse, and I am undertaking case studies of the UK, US and Australia.

I have published work in a variety of forms, I worked on C. Chambers Jones and H. Hillman, Financial Crime and Gambling in a Virtual World: A New Frontier in Cybercrime (Edward Elgar, 2014) and contributed to N. Ryder, U. Turksen and S. Hassler, Fighting Financial Crime in the Global Economic Crisis (Routledge, 2014). I have also published a number of journal articles.

The key skills I hope I can help you with include;

Using the library

Structuring essays

Presentation skills

Critical analysis

Using MS word

Referencing

I hope that, along with Amy and Coralie, we can help you improve your academic skills, enabling you to excel in your LLM. We will be running workshops addressing pertinent issues to LLM students, as well as being available to meet to discuss issues one-to-one. I am also available to answer queries via email, my address is Henry3.Hillman@uwe.ac.uk

I look forward to meeting many of you over the course of your LLM.

Henry