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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Written assessments: Marking criteria

In the run up to assessments, I’m running two workshops in the coming weeks:

  • Essay Structure and Assessment Criteria (02/03/2017)
  • Presentations and Poster/Pitch (30/03/2017)

As examiners, members of staff will be marking your essays and presentations based on objective criteria.

Note: If you want to access the marking sheet in the LLM Programme Handbook, which can be accessed online via Blackboard. The LLM Handbook is a handy reference point because it gives you examples of dissertation title pages, permission form for the dissertation, and deadlines.

For written assessments, examiners are looking for 5 main elements, which you should bear in mind as a ‘checklist’ to see whether you are meeting all of the following criteria.

  1. Identification of the principal legal concepts and issues – i.e. what are the main legal problems or relevant laws?
  2. Understanding of the law – your ability to apply the law to the question/issue you’re examining.
  3. Critical analysis – Synthesis of the legal arguments, law, theories, ideas for reform and the wider context, as well as engaging with academic literature.
  4. Originality and creativity – Are you adopting an interesting stance or arguing in a persuasive way that reflects solutions/challenges with regards to the law?
  5. Research process and presentation – Spelling/grammar, use of OSCOLA, bibliography, structure of your essay, use of subtitles and clarity of your work.

Of course, the above is just a short summary of the marking criteria and feedback sheet, which is more detailed (see: LLM Programme Handbook). But it gives you a quick introduction as a starting point.

 

 

Research Methods: Socio-Legal Methodology

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Remember: Your methodology is your overall approach or your strategy that you will adopt throughout your research project or dissertation. It forms your ‘toolbox’ and your methods form your ‘tools’ i.e. specifically how you will undertake your research. Normally you choose one methodology and stick to it rather than ‘I’m adopting a part-doctrinal, part-socio-legal, AND comparative methodology’. Otherwise, this becomes too ‘messy’!

Socio-Legal Methodology

This post focuses on the socio-legal methodology. A socio-legal methodology is quite different to the doctrinal methodology that was examined in last week’s blog post. It is different because the socio-legal approach moves away from solely  looking at legal instruments to build a more contextual analysis.

There is a lot of academic debate as to ‘what is a socio-legal methodology is’ because there is no single standard definition.[1] In that regard, I would recommend reading different sources to how scholars use this particular methodology.

A good place to start is:

Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007), Chapter 5.

Socio-legal scholars argue that law does not operate in vacuum.[2] There are wider considerations which need to be taken into account. Therefore, it is important to go beyond the traditional black-letter approach.[3]

There are some common features within the socio-legal methodology. It generally involves:

  • A contextual analysis of the law – how does it operate in society? What are the implications?
    • Goes beyond legal texts.
    • Supplements legal analysis.
  • Is either multidisciplinary or interdisciplinary in nature. If using a socio-legal methodology, you will need to substantiate which aspect you have chosen and why.
    • And yes, there is a distinction between multidisciplinary and interdisciplinary[4]

Strengths

  • Broader, more enriched analysis of the law.
    • Therefore consideration of wider issues.
  • Allows for alternative theoretical and different perspectives on legal issues.
  • Incorporates non-legal issues into the context of law, which would be traditionally outside the scope of legal studies.
  • Derive new ideas, perspectives or insights.

Challenges

  • Insufficient analysis of the law or legal doctrines.
  • Insufficient focus on the law – supplementary material is important, but not at the expense of ignoring the law or legal context.
  • Lack of identity – Is it law, is it economics, is it politics, is it sociology?
  • Critical analysis is not well-developed – Do you understand the wider theories outside of law? Do you fully understand the underpinning arguments?
  • Conceptual theories are not well developed – projects can appear ‘disjointed’ or ‘fragmented’ when being read.
  • Weak understanding of the issues that need to be reformed or the challenges in relation to the law, as well as other issues.

Methods

Note: A socio-legal approach does NOT mean you ignore the law. It is still important and you will still undertake doctrinal analysis but that forms part of your METHODS. Analysis of the traditional sources/primary sources of law are still highly relevant e.g. statutes, case law etc.

The additional methods that you need to think about is the contextual analysis – is it non-legal? If so, is it from a reputable source? What additional perspective does it add to your research? Is it relevant?

Further reading:

  • Cotterrell R, ‘Why Must Legal Ideas Be Interpreted Sociologically?’ (1998) 25(2) J. of Law & Society 171-192.
  • Feenan D, Exploring the ‘Socio’ of Socio-Legal Studies (Palgrave Macmillan 2013).
  • Harris D, ‘The Development of Socio-Legal Studies in the United Kingdom’ (1983) 2 Legal Studies 315-333.
  • Perry-Kessaris A (ed), Socio-Legal Approaches to International Economic Law (Routledge 2013).
  • Salter M, Mason J, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007).

To find out more and access further materials:

—–

[1] For example, see: Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007); Roger Cotterrell, ‘Why Must Legal Ideas Be Interpreted Sociologically?’ (1998) 25(2) J. of Law & Society 171-192; Don Harris, ‘The Development of Socio-Legal Studies in the United Kingdom’ (1983) 2 Legal Studies 315-333; Dermot Feenan, Exploring the ‘Socio’ of Socio-Legal Studies (Palgrave Macmillan 2013).

[2] Ibid.

[3] Roger Cotterrell, Law’s Community (OUP 1995) 296.

[4] For example, see: Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007) 133-134.

 

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.

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

Workshop: Assessment Criteria & Essay Structure

It was lovely seeing you at the workshop on ‘Assessment Criteria & Essay Structure’ yesterday.

Here are the slides that were used: Assessment Criteria Powerpoint Slides

We highlighted that it is important to have a good structure to help develop your arguments and make it easier or the reader/marker to understand the point that you are trying to make. To do so, we revisited the burger analogy from an earlier post.parts-of-a-paragraph

A good essay like a burger, will have an introduction (the bread bun), analysis (the filling – with different/separate components that support each other) and a conclusion (the bread bun base). It should have a logical and coherent structure, where the central argument is evident and the sections complement each other.

  1. Introduction

The introduction should outline the rationale behind your approach/work – that is, why it is relevant. Also, what is relevant i.e. what law you will use; scope and limitations – recognising the parameters of the task, as well as, your central argument. From there, it should also briefly touch upon how you’re going to answer the question, which primarily refers to the structure of your essay e.g. Part 1… Part 2… Part 3…

2. Analysis

In a burger, the ‘filling’ is arguably the best ‘bit’ of the burger, so the analysis should be the main section and ‘best bit’ or bulk of your essay. It will be formed of different components, which should be linked to each other and your central argument.

As per the assessment criteria, you should:

  • Summarise and synthesise issues arising from the law;
  • Be able to use academic arguments to support your work in a concise manner;
  • Be able to engage with these academic arguments;
  • Narrow and focus on relevant issues;
  • Consider areas for reform or recommendations

(For further details, please refer to the LLM Assessment Criteria in the LLM Programme Handbook, which can be found on UWE Blackboard).

To help your analysis, sub-headings can help ‘sign-post’ different aspects of your work and help break it down into specific sections.

3. Conclusion

The conclusion will finish your essay. It should link back to your introduction and the central argument that you introduced and summarise the earlier analysis. Because you’ll have already undertaken the analysis, the conclusion can draw on these earlier arguments. It should be noted that the conclusion is not a place to introduce new arguments or concepts.