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!


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.


[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

[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.


Research Methods: Socio-Legal Methodology


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]


  • 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.


  • 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.


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.


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.


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.


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).


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.

Handy Tip: Using Google ‘Define’

When studying law, understanding the terms that you use and how to use them is important. This is because a level of precision regarding language is needed within legal studies.

A lecturer once told me, “You can physically take a glass out onto the terrace, but you may not!” In these circumstances, knowing the difference between ‘must’, ‘shall’, ‘may’, ‘can’ or ‘cannot’ may help with your essay writing. It can improve the style of your writing and make the central argument and analysis more convincing.

Other times, you will be expected to use specialist legal terminology. If you are unsure, you  you should look up the terms in a legal dictionary. There are lots of physical copies of legal dictionaries in the UWE library, as well as, electronic copies that you can access online.

Additionally, you may read something in a journal article or book that you may not understand. I often underline this word and use ‘Google define’ to help me understand what it is and write a note in the margin to myself.

Using Google, if you type ‘define’ and then the word that you are looking for, it acts as an online dictionary. For example, if I were looking for the term ‘sanction’, I would type in ‘define sanction’ into Google. A box with definitions will then appear on your browser, like below!


Just be aware that there may be one or more definitions for a given word. A sanction in law means something different from that used in ‘normal English’, so in that case, it would be worthwhile to consult a dictionary specifically for law.

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:







Saving your work: OneDrive

Did you hear the story of the student whose computer was stolen and their coursework on it? Or the story where the student was in the middle of writing an important paper and there was a power cut?

(The last one was me recently, when there was a power cut on Frenchay campus!)

Or the broken USB stick the day of the oral assessment?

No, these are not horror stories to scare you, they are simply things that happened to friends or even myself! When you lose your work, it’s so frustrating trying to remember what you’ve written or retracing your thoughts, plus it eats into your time for assessments.

In the past, there weren’t many options available, but now you have all sorts of ways of saving:

  • On your computer
  • Google Drive
  • USB stick
  • OneDrive
  • Dropbox
  • Portable hard drive

Handy tip: It’s always good to save more than 1 copy of your work. Just in case something happens! I’ve had USB drives suddenly corrupt, but have always been thankful I keep a spare copy of my work on OneDrive.

Did you know you have 1Tb of cloud storage online as part of your UWE account?

You can access it via email. This can be accessed anywhere via your browser at home or at university or even your mobile phone.

How to access:

Click the little squares in the top left screen after logging into your UWE email. Then click ‘Onedrive’.

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You then can upload relevant documents by clicking the button ‘upload’.



Not only that, you can make files available to friends and edit the same document at the same time! Here’s what you do:

Click the share icon and email friends. If you give them permission to edit, they can save their changes on the file without the tiresome job of emailing or messaging each other to and fro via email or Facebook!

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Glossary: Public International Law


Learning public intewordclousrnational law can be a daunting task, particularly as it has lots of Latin maxims, acronyms and foreign words. It is for that reason that this post has been written; it serves as a glossary of terms that you may come across.

The glossary serves as a basic guide; it does not mean the definitions demonstrate the relevant source of law or how it is applied. In that regard, you should refer to the relevant source, for example, treaties or case law.

If using these terms in your assignments, remember that OSCOLA format requires that they are italicised. See: OSCOLA (p.8).

Term Definition
Amicus curiae Person or group with strong interest or perspective on the issue within a legal action. He/she/they may petition the court to file a brief to give further information or opinion on the matter. Amicus curiae are often filed in cases concerning public interest issues.

For example: Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania ICSID Case No. ARB/05/22, 26 March 2007.

Amicus Curiae were submitted by:  The Lawyers’ Environmental Action Team, The Legal and Human Rights Centre, The Tanzania Gender Networking Programme, The Center for International Environmental Law, The International Institute for Sustainable Development.

CEDAW Convention on the Elimination of Discrimination Against Women.

See: CEDAW (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.

Compromis An agreement between States where they jointly submit materials on a particular dispute to the ICJ.

For further details, see: Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993, Article 36(1).

Convention See: Treaty.
Corpus jure Rules that form a self-contained specialised regime (e.g. international trade law, international human rights law, international humanitarian law etc).
Covenant See: Treaty.
Customary international law This is one of the main sources of public international law. It consists of two elements: opinio juris and state practice.

For further details, you should read: Hugh Thirlway, ‘The Sources of International Law’ in Malcolm Evans (ed), International Law (4th edn, OUP 2014) 91-117; Malcolm Shaw, International Law (7th edn, CUP 2014) 49-91.

De facto According to fact or the deed/in practice.

Note: Disctinction from de jure.

De jure In law or according to the law.

Note: Distinction from de facto.

Erga omnes Obligations of the State that are important enough to be deemed that they are owed to the international community as a whole. This includes matters, such as prohibition of genocide, slavery and racial discrimination.

For further details, see: Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain) case, [1970] ICJ Rep 44.

Estoppel Requirement of consistency within legal arguments – ‘You cannot have it both ways’.

For further reading, see: Status of Eastern Greenland PCIJ Rep Series A/B No. 53, 70-71.

FAO Food and Agriculture Organization of the United Nations.


ICC International Criminal Court.


ICCPR International Covenant on Civil and Political Rights.

See: International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

ICESCR International Covenant on Economic, Social and Cultural Rights.

See: International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

ICJ International Court of Justice.


ICRC International Committee of the Red Cross.


ICSID International Centre for the Settlement of Investment Disputes.


Ipso facto By the fact itself.
ITLOS International Tribunal for the Law of the Sea. Website:
ICC International Criminal Court


ICCPR International Covenant on Civil and Political Rights

See: International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

ITLOS International Tribunal for the Law of the Sea


Jus cogens (or ius cogens) Peremptory norms of international law. There is no derogation from these norms permitted.

You may want to read, Dinah Shelton, ‘International Law and ‘Relative Normativity’ in Malcolm Evans, International Law (4th edn, OUP 2014) 137-152.

Jus gentium (or ius gentium) Now often refers to the law of nations, but originally derives from Roman law.

It is a concept that is understood to mean that it is the law established among all people via natural reasoning.

Jus in bello (or ius in bello)


Law that governs the conduct of warfare. Sometimes it is referred to has international humanitarian law or the law of war.

Note: Distinct from jus ad bellum.

Jus naturale (or ius natural) Natural law.
Jus sanguinis The ‘right of blood’ or law relating to place of descent. A legal principle that an individual’s citizenship is determined by citizenship of his/her parent.

Note: Distinct from jus soli.

Jus soli The ‘law of the soil’. A legal principle that an individual determined by place of birth.

Note: Distinct from jus sanguines.

Lacunae Gaps in the law.
Law of Treaties Note: This is different from treaty law. The law of treaties concerns the procedure for the creation, negotiation and enactment of treaties and not the actual substance of a given treaty.

See: Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.

Lex feranda (or de lege feranda) Norms still evolving/developing into law e.g. the right to development is not yet a binding norm.

Sometimes refers to what the law ought to be.

Note: Contrast to lex lata.

Lex lata (or de lege lata) Well established law that is binding.

Often refers to what the law currently is. This is a contrast to lex feranda.

Lex mercatoria


Trade law. Often refers to international commercial law i.e. the market customs that are now part of binding (market) law on States.
Lex posterior (or lex posterior derogat priori) More recent law prevails over earlier inconsistent law.
Lex specialis (or lex specialis derogat generali) Specific or more specialised law prevails over general law.
Mare clausum Closed seas.
Mare liberum Freedom of the seas.
Mutatis Mutandis When what must be changed has been changed.
Non liquet The law is insufficient to provide a decision.
Opinio juris (pinion juris sive necessitates) Firmly held position/conviction/perception that a given behaviour is required by law. This often refers to a legal duty or obligation. It is a requirement before any norm can be considered as custom within international law.

It should be noted that this is distinct from behaviours that are habit or random behaviour.

See: Hugh Thirlway, ‘The Sources of International Law’ in Malcolm Evans (ed), International Law (4th edn, OUP 2014) 91-117; Malcolm Shaw, International Law (7th edn, CUP 2014) 49-91.

Pacta sunt servanda Doctrine that all agreements must be kept in ‘good faith’.

For further details, see: Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 26.

PCIJ Permanent Court of International Justice was the predecessor of the ICJ. Some of the decisions made by the PCIJ are still relevant in international law and can be found on the ICJ website.


Peremptory norm A norm so important that derogation is not permitted. See: jus cogens.
Persona non grata An unwelcome/undesirable person. Generally refers to grounds for expelling or rejecting a diplomat.
Prima facie At first sight; based on first impressions.
Ratione materiae The material field of application of the law.
Ratione personae The personal field of application of a law.
Ratione temporae The temporal field of application of a law.
Rebus sic stantibus


‘Things staying as they are’.

The doctrine means that treaty obligations stay the same, as long as the conditions and expectations that existed remain the same. Otherwise, when a fundamental change in the underlying ethos or conditions of a treaty, it may be terminated or suspended.



A formal statement made by a given State when it signs, ratifies, adopts, accedes to a treaty that modifies or excludes certain sections of the agreement.

For example: ‘The Government of the Commonwealth of the Bahamas does not consider itself bound by the provisions of article 2(a), … article 9, paragraph 2, … article 16(h), … [and] article 29, paragraph 1, of the Convention [in relation to CEDAW]’

See: Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 2(1)(d).

Sine qua non Indispensable condition/pre-requisite.

Sources of Law

As there is no central legislature within public international law, so the sources of law (although are not exclusive to) come from three main places:

1)    Treaties;

2) Customary international law;

3) General principles.

Understanding the sources is important to understanding more complex topics within international law.

As a starting point, you should read: Hugh Thirlway, ‘The Sources of International Law’ in Malcolm Evans (ed), International Law (4th edn, OUP 2014) 91-117; Malcolm Shaw, International Law (7th edn, CUP 2014) 49-91.

See also: Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993, Article 38.

Terra (or res) nullius Land (or thing) belonging to no one.


United Nations Commission on International Trade Law




United Nations Commission on Trade and Development




United Nations Human Rights Council



Uti possidetis

‘That which you possess, you may continue to possess’

In a post-colonial context, see: Case concerning the Frontier Dispute (Burkina Faso v. Mali) ICJ Rep 1986, 554.

WTO World Trade Organization


ICESCR International Covenant on Economic, Social and Cultural Rights.

See: International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

ICJ International Court of Justice


ICSID International Centre for the Settlement of Investment Disputes