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:

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[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:

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