Identify research questions or legal issues

It is important for a researcher using the doctrinal legal approach to understand the source of possible questions for investigation. These questions might arise as a result of an occurrence or development in society generally (such as the Grenfell Tower fire disaster) or a dispute that might require a legal outcome. In the context of built environment research, such questions may take the following forms:

a Seeking an understanding of the position of the law on a subject (e.g. what is the law governing liability of builders in relation to defects or health and safety?);

b Examining how existing law extends to new developments in society (e.g. how are the emerging issues in building information modelling or smart contracting addressed in terms of the current law on property and intellectual property?);

c Explaining how old/new concepts should be interpreted and applied, (e.g. the meaning of mutual trust and co-operation under NEC 3 or NEC 4);

d Evaluating the relationship between old and new concepts (e.g. how are the concepts of mutual trust and co-operation related to the much more popular concept of good faith?); and

e Contract interpretation-dealing with difficulties and seeming contradictions.

Whilst establishing the context and raising questions for investigation might be common to built environment and doctrinal researchers, the latter will be guided in the process by a totally different conceptual framework, i.e. the legal system. Similarly, where and how social science researchers and doctrinal researchers look for answers to the research questions will differ. The former might consider observations of natural phenomena or statements from people affected by the relevant issues but the latter will have their attention focused steadily on the existing legal framework, legal norms, and judicial precedents for answers. The data for doctrinal researchers will include a review of the relevant literature but also, and more importantly, a search for the relevant, applicable law. This is the next aspect of the process - legal exposition.

Exposition of law: identify and state the law

An exposition of the law involves, among other things, what Van Hoecke and Warrington (2008) refer to as “describing the law”. The “law” here refers to the legal principles relevant to finding answers to the legal issues or research questions identified. The process of describing the law entails a literal description of the law, an interpretation of it, and the determination of its validity. For instance, if researchers want to know about the rules concerning safety at a construction site in the United Kingdom, they might ask, “Which legal rules provide this information?”. They might discover that regulations have been passed pursuant to the Health and Safety at Work Act of 1974 - the Construction (Design and Management) Regulations of 2015, which addresses this question. To have a deeper understanding of the current state of the law, they might decide to refer to previous regulations and how the current position of the law has evolved. Researchers might choose to examine the motivations for changes which culminated in the current law. All these inquiries would constitute part of the process of describing the law. To establish the validity of the current regulations, researchers might ask whether the provisions of this law are consistent with the content of the parent legislation, that is, the Health and Safety at Work Act of 1974. If not, a court is likely to invalidate the offending provisions of the regulations at some point. The foregoing example confirms the argument of Van Hoecke and Warrington (2008) that “describing the law” necessarily entails interpreting and validating the law.

The process of legal interpretation is carried out within a certain legal framework. What is acceptable as law or material facts (or indeed, reality in law) is determined by and perceived with reference to the conceptual framework referred to as the legal system (Van Hoecke and Warrington, 2008). In this sense, what is considered to be a relevant fact is not determined by what the parties affected by the law think, but what the law (taking account of what needs to be established in order to satisfy a legal threshold) requires.

Exposition of the law is not merely an exercise in logical reasoning. It is based on data - primary and secondary. In the legal context, this data may be in the form of legislation and judicial decisions. This explains why an effective legal exposition is only possible if the researcher has reasonable knowledge of the sources of law. In the United Kingdom, sources of law include legislation, delegated legislation, and judicial decisions (cases). Legislation comprises laws passed by parliament. There are thousands, if not millions, of pieces of legislation in force in the United Kingdom covering a wide spectrum of subjects, including construction, health, and safety, the environment, procurement, and so on. Examples of domestic leg- islation include the Health and Safety at Work Act of 1974; the Human Rights Act of 1998; Housing Grants, Construction and Regeneration Act of 1996; and the Local Democracy, Economic Development and Construction Act of 2009. Then there is EU legislation which remains applicable, regardless of BREXIT. Delegated legislation refers to regulations and by-laws enacted pursuant to powers conferred on a minister by legislation. An example of delegated legislation is the Construction (Design and Management) Regulations of 2015. Both legislation and delegated legislation can be accessed in hard copies in libraries and online through dedicated databases. Again, special skill is required to find legislation in hard copies. Librarians can be of immense help with this, but ideally, researchers should be able to use the library catalogue to trace where the relevant resources are located in the library. Then, there is the question of where specifically in the hefty bound and loose-leafed books a particular legislation is located. Alternatively, built environment researchers in the United Kingdom can rely on the online database of UK legislation at the following address: . Similar databases for legislation might exist in other jurisdictions.

Cases are records of judicial decisions over the years. Case law thus refers to legal principles which have developed as a result of consistent exposition and application of the law. These principles, like legislation, run into thousands (if not millions) and apply to different subject matter in society. A typical example of case law is the “neighbour principle” in Donoghue v Stevenson. This principle, addressing what will constitute negligence, was popularised by the then United Kingdom House of Lords in a decision in 1932. Since then, it has been explained, refined, qualified, and expanded by other courts. Similar to legislation, cases are reported in volumes called Law Reports. The Law Reports contain “processed data” from primary records of cases heard by courts. Thus, in a sense, the Law Reports could be regarded as secondary data. These secondary data are the staple of many a doctrinal legal researcher.

Each case is assigned a citation making it possible for researchers, lawyers, and judges to identify and retrieve copies when required. There are different forms of citation. Each citation system encapsulates some vital information about a case. This includes the name of the parties (title of the case), the year in which the decision was made or reported, the court which made the decision, and the page where the decision can be found. For instance, the citation for Donoghue v Stevenson is [1932] A.C.562. This citation means the case was decided in 1932, reported in the law report known as the “Appeal Cases”, and can be found on page 562 of that report.

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Sometimes cases may be reported in multiple law reports. So, Donoghue v Stevenson is also reported in the “All England Report” with the citation [1932] All ER 1.

Modern reports use what is referred to as neutral citations. This means essentially that no reference is made to specific law reports. The citation mentions the date of the decision, which court made the decision, and a special case number. For instance, here is the citation of the Supreme Court case Robinson v Chief Constable of West Yorkshire Police: [2018] UKSC 4. This citation means this is the decision of the UK Supreme Court delivered in 2018 with a unique reference number 4. This case was heard by the Court of Appeal before it was taken to the UK Supreme Court. The citation of the Court of Appeal decision is [2014] EWCA Civ 15. This citation means the decision was made in 2014 by the Civil Division (Civ) of the Court of Appeal of England and Wales (EWCA). Many law reports are now easily accessible online through dedicated databases such as Westlaw, Lexis Library, and Bailii.

Navigating these sources of law, to find which laws or legal principles are in force or are applicable to a specific situation, requires special skills. In this regard, built environment researchers venturing into doctrinal research must acquire, at least, basic aspects of these skills, such as finding the law, reading it along with relevant commentaries and background materials, and identifying the hierarchy or status of the relevant law in relation to others (Finch and Fafinski, 2019). Much of what is covered in the preceding paragraphs is about finding the law.

Reading the law requires a different set of skills. It requires an understanding of how both legislation and cases are structured. A case may run into hundreds of pages. The ability to identify what is relevant in a case is thus a very useful skill. Although there might be slight differences in the structure of judicial decisions, most of them will follow a common structure (Table 8.2):

Table 8.2 Case structure

Source: Original.

The part of every judicial decision, which is relevant to the purposes of iden- tifying the law, is the ratio decidendi (the legal principle on which the decision of a court is based). When dealing with case law, one judicial decision may affirm, qualify, or build on another. Consequently, the search for a legal principle appli- cable to a research question or legal issue necessarily entails some form of analysis of one or more relevant cases and or legislation.