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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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.

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!

screen-shot-2016-12-06-at-18-35-33

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.

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.

 

 

 

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.

How to locate a journal article using the reference

This post aims to provide you with a helpful guide to finding journal articles using a reference, this will be most useful in locating your recommended reading you are directed to by your lecturers. Before you can find a journal using the reference, first you need to understand the reference:

Understanding the parts of the reference

[Author], ‘[Journal Title]’ ([Year]) [Volume] ([Issue]) [Name of Publication] [Starting Page Number]

Example:

R Cotterrell, ‘Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies’ (2002) 29(4) Journal of Law and Society 632

This journal article is written by R Cotterrell, the title of the article is Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies, it was published in 2002 in volume 29, issue 4 of the Journal of Law and Society, and the article begins on page 632.

This is a lot of information, delivered in a concise format, and understanding each piece of information helps us to locate the article, think of the reference as being the article’s address. The aim of this post is to demonstrate how each part of the reference may be used, in conjunction with the library resources, to locate the article.

Searching using the title

Many journals are retrievable directly from a search of the library using the title of the journal:

title-search

Simply enter the title of the journal in the search box, press search and…

title-search-results

If the article can be found, it will usually be the top result, as can be seen above, we can also see that the library has the full text online, so click on the link and you will be taken to the article.

Sometimes things are not as straightforward as this; searching using the library in this way involves the library searching databases for the title you have asked for, this saves you a lot of time, you then get the relevant result. Unfortunately the library search does not have the ability to search every database in this way, some databases do not allow the library search tool to search for titles within their database. If your title search fails, then you need to use the publication name in order to locate the correct database yourself.

Searching using the Publication Name

As you can see from the breakdown of the reference, we can use the reference to identify the name of the publication the journal is published in.

Sometimes the full name will be given, for example here highlighted in red is the publication name within a reference:

R Cotterrell, ‘Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies’ (2002) 29(4) Journal of Law and Society 632

Other times an abbreviation of the publication name will be given, for example here highlighted in red is the abbreviated publication name within a reference:

  1. Gomulka, ‘Will UBS mark the end of rogue trading or the beginning of regulatory collapse?’(2012) 12 (2) JIBFL 120

As you become more experienced, you will begin to recognise publications from their abbreviations, but when you are unfamiliar with the abbreviation can find the title using Cardiff Index to Legal Abbreviations; this useful resource allows you to search for titles using abbreviations, and vice versa. Taking the JIBFL as an example we can search the index like so:

capture

The search will then return matching results, in some cases there may be more than one result, but in the example search, we get one result:

cardiff-results

We now have the title of the journal, Journal of International Banking and Financial Law, and we can search for this title using the library search:

pub-search

By entering this search term the library will provide result which will include databases where we can access this publication, if the library has access to the publication.

pub-search-results

We can see from the results that the top two entries hold full text of the publication we are looking for, and the second result shows us that the publication is available from Lexis Library. The links provided by the library search results will take us directly to the publication, within the database:

lexis

From this page we can use the various sections of the reference to search for the article, we can enter the author and the title, which in this case takes us directly to the article:

lexis-result

Or we can use the reference to browse for the article, this will make use of the year or volume, the issue and the page number of the article to locate it. So in our example we can take the year and volume, then the issue and finally the page number

  1. Gomulka, ‘Will UBS mark the end of rogue trading or the beginning of regulatory collapse?’(2012) 12 (2) JIBFL 120

lexis-browse

When using Lexis Library, browsing involves expanding the relevant section by clicking on the plus (+) sign. Once you have found the issue you are looking for, expand it and then you can view the articles by title, in page number order:

lexis-browse2

The interface you will meet at each database you use will be different, some are much easier to use than others, but the aim of this guide is to allow you to understand the reference you have been given, and be able to locate the journal using that information. My best advice is to keep practicing, you will learn to recognise abbreviations, so you will not need to use the abbreviations index as often. You will also learn which databases hold which publications. This guide will be most useful when do not have that experience, and you can fall back on this process. If you are still having trouble locating journals then come see us in the ASC. If you have followed this guide, and you are still unable to locate the article then contact the lecturer who set the reading.

Cross-Referencing

Last week, the ASC LLM Team ran a workshop on referencing. This video is a brief overview of what was covered:

This post will particularly focus on how to cross-reference.

There will be a moment during the course of your work where you will want to refer back to an earlier citation. Bear in mind, that footnotes are numerically ordered e.g. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 etc…

A long time ago, when I was an undergraduate student, I didn’t know this. I submitted a piece of coursework where every time I referred back to an earlier footnote, I would write 1, 2, 3, 1, 4, 5, 1, 2, 1. Of course this is wrong and it’s terribly confusing for marker!!!

Learning to cross-reference is an important skill. So, how do you go about it? Imagine that you need to reference the following piece of text:

screen-shot-2016-10-24-at-13-03-22

Step 1)

In footnote 3, you would like to refer back to the citation you made in footnote 1. Type in the surname, brackets with an ‘n’ in them, plus page number that you want to refer to. For

Example:

screen-shot-2016-10-24-at-13-10-23

In the space before closing the brackets, click the cursor (I’ve highlighted this in yellow above). This will be where you want your cross-reference.

Step 2)

Then you will need to navigate to the ‘insert’ menu at the top of Microsoft Word and choose ‘cross-reference’.

Screen Shot 2016-10-24 at 13.14.23.png

OR, if you navigate to the ‘Reference’ tab, and click the ‘cross-reference’ icon.

Screen Shot 2016-10-24 at 13.14.18.png

 

A small menu will appear. It should look something like this (note: this will vary a little bit depending on the operating system you use e.g. Mac or Windows).

Screen Shot 2016-10-24 at 13.42.40.pngWhere it says ‘Reference type’ at the top of this menu box, you need to make sure you choose ‘footnote’ from the drop down menu, otherwise you will not be able to see the list of footnotes generated (this is where the top red arrow is pointing!)

The menu box will then show you the footnotes that you have made. Choose the footnote that you want in this little menu bar. This will then be highlighted in blue, as you can see from the second red arrow above. If you then click ‘insert’, the cross reference number will be generated for you.

Step 3)

This is handy for a lengthy piece of work because when you need to insert new footnotes, the numbers for the cross-references will change for you. Please note that not all computers do this automatically. You may need to ‘force’ it to refresh by clicking ‘print’ or ‘print preview’. However, you do not need to print the item, as long as you receive the printing menu up, you can press ‘cancel’ but Word will refresh these cross-references for you.

It’s a really cool function, as it means you don’t have to go back and put every number in manually afterwards! Hypothetically, if I added a new sentence which needed a new reference, it would look like this.

screen-shot-2016-10-24-at-13-50-09

With the cross-referencing function in Word, it will change the footnote numbering. It should then look something like this:

Screen Shot 2016-10-24 at 13.51.10.png

A Final Note:

I like to keep rough drafts of coursework saved as different files. That way I can track my progress with work. Or I sometimes use a clean Word document to write a separate section of my work to copy and paste into the longer file at a later stage. If using cross-referencing, you will need to be careful because Word doesn’t always recognise these points and it is not foolproof!!! Within your footnotes you may receive the notification ‘n error bookmark not defined’. If that is the case, you will need to revise and check the citation manually, as you may have accidentally deleted the original footnote you were referring to!

For further information on cross-referencing, see: