LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

GROWTH AND DEVELOPMENT OF EMPIRICAL LEGAL RESEARCH1 INTRODUCTION It is doctrinal research which was followed in earlier times and empirical research is of recent origin. Understanding the behaviour of human beings is the first focus of empirical research and it is done by collecting first hand data. In order to understand the human conduct, empirical research uses tools such as observation, interview, questionnaire, survey, schedule, case study etc. Empirical research is not applicable to evaluate morals and values because it is not possible to test by empirical methods what is good and what is bad. Empirical research is concerned with influence of legal decisions and its impact on the society it is the relationship of law with other social and personal factors. Here legal doctrines have been bypassed and stress is given on the people and society. If we make a comparison between doctrinal and non-doctrinal research we will find that non-doctrinal research answers a lot more questions than doctrinal research. The approach of an empirical researcher is always broader as compared to doctrinal researcher. For the questions empirical researcher asks he needs data to answer it which will not be available in the library and he has to collect the data from conducting field work ---- traditional sources of data is of no help to the empirical researcher. We moved ourselves from the concept of police state to welfare state where John Austins definition of law as a command whose violation is met by the threat of physical coercion which is based on criminal law model is too narrow as it ignores other forms of law. Positivists see the law as law as it is and practice and functioning of law is immaterial to them. Law is now regarded as an instrument of social change. Roscoe Pound was the first jurist who gave stressed on social factors in the study of law. The reason for the movement of legal research from doctrinal to non-doctrinal are the gaps that lie between the legal doctrines and application of law in practice and because of the vague language used in law that divert its actual purpose and goals which have been set before.
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Joydip Ghosal, Pursuing Ph D from WB NUJS, Kolkata, Guest Lecturer at Surendranath Law College, Kolkata

It is the realists who stressed on the study of law as it is applied in practice. There is an interdependence of society and law and vice versa; study of law should not only focus on traditional legal system but also to understand the law as it is applied in the society.

DEVELOPMENT OF EMPIRICAL LEGAL RESEARCH Empirical Legal Study movement developed mainly in USA at the beginning of the 21st century ----it was the American legal scholars who promote the empirical research in law. In order to improve their legal system various countries adopted empirical legal research and most of them are funded by various national and international organisations. Empirical research involves systemic collection of data and its analysis according to some generally accepted methods. Those data can be gathered from using a wide range of tools including interviews, observations, surveys etc. Empirical research examines how law works in practice covering matters such as how laws are made, what functions they have in the society and to what extent law influences the actions, attitudes and expectations of peoples.

GROWTH OF EARLY EMPIRICAL LEGAL RESEARCH IN PRE WORLD WAR II Before the great depression of the 1930, some of the American legal scholars had undertaken empirical legal research in order to make court and legal system work better and tried to deviate their works from the traditional nature of law and legal system as followed in other common law countries, such as in England, Australia and Canada. Research works conducted during 1930s concluded that administration cost of bankruptcy-type proceedings which consumed 30 to 40 percent of the assets of estates led to the creation of small claims courts, which followed simplified procedures to allow unrepresented litigants to obtain redress in small damage causes, primarily used for debt collection[1]. Operation of criminal justice system was one of the first focuses of empirical legal research with a number of Crime Commissions established in US during 1920[2]. The first of the crime survey was carried out under the leadership of Roscoe Pound and Frankfurter[3].In USA, during 1920 to 1930, Empirical works on criminal justice system were sponsored by Crime Commissions and Judicial Councils for studying operation of courts[4]. Funds for conducting empirical research came largely from government and private foundations as academic institutions did not have the resources to provide long term support

for conducting empirical research. Yale and Hopkins Universities of USA, primarily provided some funding for conducting empirical legal research with an expectation that researchers and institutes would be able to raise more funds from outside to sustain their research programme[5], whereas in England most of the research work on government problems done by governmental bodies as in England the relationship among legal academics, legal practitioners and legal policy makers were more distant than in USA[6]. In the early 20th century, British interest in criminology come from criminal justice professionals and not from academic institutions whereas in USA, Universities as a centre for research in social sciences and humanities developed with the appearance of department of sociology and political science[7].

GROWTH OF EARLY EMPIRICAL LEGAL RESEARCH IN POST WORLD WAR II A few years after 1930, there was a decline in conducting empirical legal research and a renewed interest developed only after 1950. The reason for the declination was that sponsors, such as Crime Commissions and Judicial Councils seemed to fade away and the absence of technologies that came later. Though it is true that in the pre-computer era even with data in hand, analyzing those data was labour-intensive and something as simple as single co-relation would take hours to compute from large samples, but the researchers did not understand that valid and reliable conclusion could be drawn using probability samples of thousand or fewer observations[8]. Advances in technology and computation of statistics through computers made possible for re-emergence of empirical legal research after 1950. Development of desktop computers, low cost statistical software and the availability of electronic legal research tools made easy for scholars to undertake empirical legal research that led to the growth of modern empirical legal research which seemed quite impossible before 1950. Value of empirical legal research on wide range of legal topics was also recognised by both government and private funding agencies. Being able to use sophisticated methodologies, technologies, access to data resources and tools, todays practitioners of empirical legal research undertaken studies related to legal profession, arbitration, court delay, criminal justice etc[9]. INFLUENCE OF LEGAL REALISM UPON EMPIRICAL LEGAL RESEARCH During 1930 a group of legal scholars developed an interesting juristic thought known as realism. Realism relates to the real world--- the world as it actually operates, which carries

the idea of being practical, down to earth and pragmatic. Realism look at the law with an open eye as it actually operates in every day practice. It is an attempt to rationalise and modernise the laws by utilising scientific methods and thereby introduced a scientific approach and empirical methods into the study of law. Known as behavioural approach, Lleweyyn suggested that focal point of legal research should be shifted from the study of rules to the observance of the real behaviour of law officials, particularly the judges[10]. Another scholar Frank wants us to study the law in action---- the courtroom, not the library should be our laboratory[11]. Realists highlighted on the realistic study of law not as it is contained in statute book but as finally interpreted and lay down by the courts in judicial decisions while adjudicating disputes. Legal Realism extracted the law from the hold of traditionalists and exposing it to relevance of global phenomena beyond pure legal categories thereby initiated collaboration between law and social science. It is this influence of Realism upon legal research that requires considerable attention in tracing evolution of legal research. It is the advent of Realist School that empirical enquiry becomes an accepted basis for legal analysis. The questions posed by empirical researchers influenced the work of other legal scholars thereby contributing to a reorientation in legal thinking. It is also true that despite widespread adoption of empirical approach, some law scholars showed their interest in doctrinal research where the researcher limits their sources of inquiry to those legal resources which might aid them in determining what the law is, taking recourse to case laws and legislations. Universities in their own interest stimulated empirical approach because through these they were generating income, sometimes beyond their government grants as government departments becomes the sponsors for carrying out empirical research. On the one hand, empirical research contributed funds to the Universities and on the other hand, capacity to undertake large-scale of empirical research came to be regarded as one of the hallmarks of an academically vibrant law school.

TYPES OF EMPIRICAL LEGAL RESEARCH METHODS (A) QUALITATIVE RESEARCH According to Denzin and Lincon, Qualitative research involves an interpretive, naturalistic approach to the world[12]. The word naturalistic means to study people and things in their natural settings, that the research should be conducted in its natural context and

not in an environment created by the researcher himself. It refers to watching people in their own territory and interacting with them in their own language. Interpretivism is a school of thought which stresses on importance of interpretation as well as on observation in understanding the social world[13], it attempts to capture and categorise social phenomena and their meanings as well as examines those phenomena in their social settings. Phenomena here refers to action, decision belief, faith which people attached to themselves and a good researcher try to understand the meanings people attached to those phenomenas----- consider those phenomena in context. Researcher should also have the quality to interpret the phenomena in terms of the meaning people bring to them[14]. Qualitative research involves a set of interpretive material practices that make the world visible. Qualitative researcher examines peoples experiences in detail by using specific set of research tools such as in-depth interviews, direct observations and analysis of documents, used singly or in combination. Therefore, qualitative research uses a number of inter-connected interpretive practices with an expectation to get better understanding of the researched. (B) QUANTITATIVE RESEARCH Quantitative research is concerned with the measurement of quantity or amount and is applicable to all such phenomena that can be measured in terms of quantity or numbers. Quantitative data are numerical; they are information about the world and in the forms of numbers. Quantitative research presents the results in the form of statistical tables and graphs by using tools such as interviews, questionnaires or measurements and tries to count how frequently something happens. It is based on positivist tradition where the researcher is searching for objective truth. PARADIGMS The two school of thought (paradigm) namely, the positivist and interpretivist are two dominant paradigms that underlie social science research. Paradigms are models or frameworks for observation and understanding which shape both what we see and how we understand it[15]------- it refers to ways of looking at reality. Paradigms represent belief system that attaches the user to a particular worldview. Denzin and Lincon defines paradigm as a net that contains researchers epistemological[16], ontological and methodological premises[17]. These beliefs shape how the qualitative researchers see the world and act in it. TYPES OF PARADIGM

(A) POSITIVIST PARADIGM In positivism it is assumed that reality consists of facts where a researcher can observe and measure reality in an objective way with no influence of researcher on the process of data collection. Researcher thus assumed to be value-free as there is a separation of facts from values. Positivism is often criticised for its assumptions about objective measurement which separates the researcher from the researched and fails to acknowledge interactive and coconstructive nature of data collection with human beings. Positivism focused only on capturing facts and does not account for contextual influences[18]. (B) INTERPRETIVIST PARADIGM Upon the drawbacks of positivist paradigm, interpretive paradigm emerged which had overcome the lacunas of positivist paradigm. It is a school of thought that stresses importance on interpretation as well as observation in understanding the social world[19]. Some of the important facts of interpretive paradigms are: 1. Referred to an emic or inside perspective it seeks to understand peoples lived experiences from the perspective of people themselves; 2. Emphasised on the importance of interpretation and observation in understanding social world; 3. Highlighted inherent subjectivity of humans, both as study participants and researcher; 4. Acknowledged background and values of researchers influence on creation of data.[20] Although interpretive paradigm and positivist paradigms appear completely opposite, divergence between two paradigms is not always distinct as it may appear. Some approaches to qualitative research have positivist influences, like grounded theory, classical content analysis and some approaches to quantitative research have interpretive elements, like open questions in surveys [21].

DEVELOPMENT OF MULTI METHOD RESEARCH In order to better understand the relationship between law and social world multimethod research employs a number of different methods. It is the using of both quantitative and qualitative data in order to an in-depth understanding of the phenomena.

If we look at the paradigm wars of 1980s it can be said that mixing of quantitative and qualitative methods is not possible because they have different paradigms lying behind them. The Purists argued quantitative and qualitative methodologies cannot be combined because of differences that underlie the methods[22]. If we follow the definition of paradigm given by Denzin and Lincon that paradigm is a net that contain researchers epistemological, ontological and methodological premises,[23] then it is not possible for a researcher to move from one to another. Morse and Nichaus warned that ad hoc mixing of methods can be a serious threat to validity[24].

ACCEPTANCE OF MULTI METHOD APPROACH After 1990 it was accepted that mixing of quantitative and qualitative methods can be done by an empirical researcher in order to find out legal system properly. Phenomena of law itself consist of individuals, organization settings, institutional fields and interactions among them. Law practices by individuals as plaintiffs, defendants, lawyers and judges. These individuals operate within organizations as workplace, law firms and therefore play a mediating role in how law operates. Social institutions affect legal processes as well. As a result fully understanding of law demands research conducted using multiple approaches[25]. Multi-method approach allow the scholars to use both reading, interacting and counting at the same time and thereby help them to understand the phenomena in a better way. It is only the application of variety of methodologies that help the researcher to understand the laws, legal institutions and legal processes. In order to have more exploratory power researcher has to use different methodologies that are linked together.

CONCLUSION Having gone through a number of articles and books it is found that empirical legal research deals with how law works in practice, it is not to understand the law as it is in the statute books but to understand the law and legal system as it is applied in the society. Law as it is written in the statute books is one thing and how it works in reality is another. Empirical legal research tests both the effectiveness of the application of law as also to find out its features in the application. If research is a systematic process consisting of collecting and

analysing data then empirical legal research involves systematic collection and analysis of data about law. Even if it is true that empirical legal research is too much useful to the society but there are some difficulties that an empirical legal researcher faces while conducting empirical legal research. As we all know that for conducting every research two major problems are time and money. For empirical legal research lack of funding is one of the major concern as empirical legal research involves a lot more money to spend and finding funding agencies for sponsoring empirical legal research in now a days of economic crisis is too much tough. There is another regular problem with the persons in the law field that the law professionals have some sort of adaptability to support members from other disciplines who wants to do their research work on the subject relating to law. Law schools and law professionals have sometimes not showed much flexibility to go beyond the traditional doctrinal legal research as law scholars have some hesitations on conducting empirical legal research. If we consider law as social phenomena then we have to take into consideration of all the social and other factors that mould the law. How laws are interpreted and how they relate to, dependent on and are compromises by social factors should also have to be taken into account. If doctrinal research deals with law in theory, non-doctrinal research deals with law in practice and that law is one thing and its application in practice is another. Study the people in their natural environment is the focus of empirical research and that can be achieved by conducting field work. Today law is considered as an interdisciplinary subject. It is associated with Anthropology, Economics, Sociology, Political Science and different scholars from these fields have different approaches which include both their strengths and weaknesses. All methods in empirical legal research, may it be quantitative, qualitative or multi-method, seek to answer the questions in their own way with a single focus to understand the relationship of law and society.

REFERENCES 1. THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH, EDITED BY Peter Cane

and Herbert M. Kritzer, Oxford University Press, 2010. 2. 2013. Mc Convile, Mike, RESEARCH METHODS FOR LAW, New Delhi, Universal Law Publishing,

3.

Norman K. Denzin and Yvonna S. Lincon, THE SAGE HANDBOOK OF QUALITATIVE

RESEARCH, Sage Publications, 2011. 4. Jane Ritchie and Jane Lewis, QUALITATIVE RESEARCH PRACTICE: A GUIDE FOR

SOCIAL SCIENCE STUDENTS AND RESEARCHERS, SAGE PUBLICATIONS, Reprinted, 2011. 5. Monique Hennink et al., QUALITATIVE RESEARCH METHODS, Los Angles, Sage

Publications, 2011. 6. S. K. Verma & M. Afjzal Wani (Eds), LEGAL RESEARCH AND METHODOLOGY , New

Delhi, ILI, 2001. 7. S. N. Dhyani, FUNDAMENTALS OF JURISPRUDENCE, Central Law Agency, Allahabad, 3rd

Edition, 2004. 8. Anne-Marie Ambert, Patrica A. Adler, Peter Adler, Daniel F. Detzer, Journal of Marriage and the

Family, 57, November 1995, 879-893. 9. William A. Fierstone, Meaning in Method: The Rhetoric of Quantitative and Qualitative

Research, Educational Researcher, October 1987. ENDNOTES [1] Herbert M Kritzer, THE (NEARLY) FORGOTTEN EARLY EMPIRICAL LEGAL RESEARCH,889 [2] Id.,878 [3] Id. [4] Id. [5] Id.,882 [6] Id. [7] Id. [8] Herbert M Kritzer,THE (NEARLY) FORGOTTEN EARLY EMPIRICAL LEGAL RESEARCH, 895 [9]Id., 897 [10] see S N DHYANI, FUNDAMENTALS OF JURISPRUDENCE, CENTRAL LAW AGENCY, ALLAHABAD, 3rd EDITION, 2004, 344

[11] Id.,345 [12]Dawn Snape and Liz Spencers, THE FOUNDATIONS OF QUALITATIVE RESEARCH, 3 [13] Id., 7 [14]Monique Hennink, QUALITATIVE RESEARCH METHODS, 9 [15] Id., 14 [16]See Norman K. Denzin and Yvonna S. Lincon, THE SAGE HANDBOOK OF QUALITATIVE RESEARCH, Epistemology is ones understanding of the nature of knowledge. It is connected with ways of knowing and learning about the social world. There are two main epistemological stances, one is positivism and another is interpretivism. Methodology refers to how we gain knowledge about the world and ontology concerned with beliefs about what there is to know about the world. [17] Monique Hennink, QUALITATIVE RESEARCH METHODS, 11 [18] Id., 14 [19] Dawn Snape and Liz Spencers, THE FOUNDATIONS OF QUALITATIVE RESEARCH, 7 [20]Monique Hennink, QUALITATIVE RESEARCH METHODS, 11,14,15 [21] Monique Hennink, QUALITATIVE RESEARCH METHODS, 15 [22] See William A. Firestone, Meaning in Method: The Rhetoric of Quantitative and Qualitative Research: Quantitative research is linked to positivism and qualitative research is associated with interpretivism. The Purists believe that the two method types are incompatible because they are based on different paradigms. The Pragmatists see a more instrumental relationship between paradigm and methods. They have actually gone on to combine the methods in practice. [23] Monique Hennink, QUALITATIVE RESEARCH METHODS, 11 [24] Denzine and Lincoln, THE SAGE HANDBOOK OF QUALITATIVE RESEARCH, 7 [25] Laura Beth Nielson, THE NEED FOR MULTI-METHOD APPROACHES IN EMPIRICAL LEGAL RESEARCH, 952

By:Joydip Ghosal, Pursuing Ph D from WB NUJS, Kolkata, Guest Lecturer at Surendranath Law College, Kolkata