Doctrinal research, empirical legal research and research ethics

Following a library workshop in which students practise advanced research skills in accessing databases and literature searching, the first seminar is intended to set the scene for subsequent investigation of the use by academics of social research methods in the substantive areas of negligence, judicial review, and contract. The assumption is that students will be familiar with the legal content of these topics from their first-year studies, enabling them to concentrate on methodological issues. A key learning objective at this stage is for students to develop an understanding of essential distinctions - between doctrinal and empirical legal research, and between quantitative and qualitative research.

While the quantitative/qualitative distinction has proved generally unproblematic, many students have considerable difficulty in grasping the peculiar character of the black-letter study of law as a system of legislative rules and judicial doctrines, as taught in the core curriculum in Year 1, and the difference between this dominant tradition and the study of law in society. In preparation for the seminar, students are referred to extracts from McConville and Hong Chui (2007) and asked: 'What is doctrinal legal research? Who does this type of research, for what purposes? What steps are involved in carrying out this type of research? What is empirical legal research? What is the difference between empirical legal research and other "non-doctrinal" approaches to the study of law?'

Having established the relatively narrow scope of the doctrinal approach, the foundations are laid for exploring the complementary nature of empirical legal research, illustrated in arguments for the reform of legal rules based on evidence of their operation and effects 'in the real world'. The idea that the socio-legal study of law might involve a combination of doctrinal and social research, rather than a focus on social research to the exclusion of legal doctrine, has helped establish the relevance of the module within the

LLB programme.[1] The increasing involvement of staff in teaching ALRLR who have both experience in empirical socio-legal research and academic and/or professional backgrounds in the discipline of law has been a major step forward in this regard. Earlier versions of the RM module were taught by experts in social research methods who (through no fault of their own) lacked legal training and were unfamiliar with the empirical literature in law, and so unsurprisingly were not best placed to explore the links between these aspects of socio-legal research.

The first seminar also encourages students to reflect on why, and for whom, empirical legal research is important. In this connection, students are referred to the Nuffield Inquiry report (2006) and to the Law Commission's website.[2] They are asked what types of research the Law Commission undertakes in discharging its responsibility of ensuring that the law is as 'fair, modern, simple, and as cost-effective as possible'. The remainder of the seminar explores the nature of research ethics in legal research. Students are asked to apply the Socio-Legal Studies Association (SLSA) 'Statement of Principles of Ethical Research Practice' (2009) in considering whether the research described by Carolyn Hoyle in her piece on 'Ethical and Methodological Issues in Researching Domestic Violence' (Hoyle, 2000) was ethically conducted.

  • [1] Of course, we recognise that much empirical socio-legal research has nothing to do withlegal doctrine in the sense here defined. Similarly, only a certain type of socio-legal researchhas direct implications for the reform of law or legal institutions. However, all the case-study articles used in the ALRLR module have such characteristics, at least to some degree.
  • [2] www.justice.gov.uk/lawcommission/index.htm
 
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