DOCTRINAL AND NON-DOCTRINAL

LEGAL RESEARCH

s.N. Jain"
I. Doctrinal research and social values
LA W IS a normatiy~ien&J;. that is., a science which lays down norms
situation or situations
and standards for human behaviour in ~.
enforceable throu'&!! tfie-salIs:.tiWl~Lthe- state. What distinguishesIaw
From'othersocial sciences (and law is a social science on account of the
simple fact that it regulates human conduct and relationship) is its
. normative character. This
fact along with
the fact that stability and
I
.-----'certainty of law are desirable goals and social values to be pursued, make
dOctriiuil research to be of primary concern to a legal researcher.
DOe-irana" resear~h,-of c;~rse: involves analysis of~~w...l..arrl!!!ging,
ordenDs and syitem3h.sj.ng Je~alpropositions. and study of legal
i~ions. wt iLdoes .more=-it!,~at~s law and its JnliQI !9.01 (but not
t~!.EI!!y_!ool) t~~ is .!.llr9ygbJ~ea.soniJl&. or rational deduction.
!l.venduring The..period when..analytical.p.QsitiYJ-s!l1_h.eld~ s.~~L!!!g the
~ant legal.pl1ilosqphy was that judges did not create law but merely
declared it, the t!..utj1 wasthat much judicial creativi~ was gOln'g~on~ The
development of common .law by th~_ C0l1'lJll.OIL h;tW j)1des...i.S .,~ar
example of law-making by the judges. has been commented upon the
...
traditional view:

specHieo

It

While the traditional theory may appear more plausible in a

period characterized by relatively stable conditions, as opposed
to one in which great changes and developments are clearly
evident, it is still difficylt to see how one could literally beli.$ve
the law to be a coherent and complete system, and the judicial
process to be only a togical ap'p~~tJQ~ o(ex'istin!L~tit~ofj~w.
Pro"Cessor Cooperrider has made the plausible suggestion that the
traditional .theory was not intended as an accurate descriptive
This paper is a supplement to the author's earlier paper. "Legal Research and
Methodology", 14 JIL/487 (1972).
Reprinted from 17 Journal of the Indian Law Institute 516-536 ( 1975) .
L.L.M., S.J.D. (Northwestern), Director, Indian Law Institute, New Deihl.

DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH

69

account of the judicial process : ... .1 am also inclined to doubt

that it is sound to think of it as a conscious attempt at scientific
description. It did, however, represent a view which at one time
was generally held as to the attitude which the judge should
bring to his task: that it should be his objective to deal with the
case before him in that way which was indicated by an
interpretation of existing authorities, rather than in that way
which seemed to him on the facts to be the fairest or most
desirable from a social point ofview. It called for the subordination
of his judgment to that of the collectivity of his predecessors,
for a primary reliance on a reasoned extrapolation of accumulated
experience.' [The Rule of Law and the Judicial Process, 50
Mich. L. Rev. 505-06 (1961)]. According to this interpretation,
the traditional theory represents more a practical regulative ideal
of how the judicial process ought to be conceived by the judiciary
than a theoretical analysis of its actual structure and functioning. I
That even in that case-law method of research much creativity goes
on isS~~~dozo1illilS~o~~eNature ofthe Judicial Process.
Rls thesis is that law or legal propositlonsarenot tinaI or absolute-but
are in the state of becoming. He quotes Munroe Smith :
T~s and principles of case law have neve.r ~~~!! t~e~t~fI ~s
fi,!!,al truffis,1ffifirwof"king hypotheses,"continually rete~!ed i!1

those great labOraiones of the liW,tJie

courts of justice.

Every

new-case fs'ill;~experimel1t; an<Hf the accepted rule which seems

applicable yields a result which is felt to be unjust. the rule is
reconsidered. It may not be modified at once, for the attempt to
do absolute justice in every single case would make the
development and maintenance of general rules impossible; but if
a rule continues to work injustice, it will eventually be
reformulated. The principles themselves are continually retested;
for if the rules derived from a principle do not work well, the
principle itself must ultimately be re-exarnined.I
He himself says:
Hardly a rule of today but may be matched by its opposite of
yesterday....These changes or most of them have been wrought
by judges. The men who wrought them used the same tools as
the judges of today. The changes, as they were made in this case
I. Boonin, "Concerning the Relation of Logic to Law", 17 J. Legal Ed, 155 at 158159 (1964-65). Emphasis as in the original.
2. Quoted in The Nature of the Judicial Process 23 (1921).

LEGAL RESEARCH AND METHODOLOGY

70

or that. may not have seemed momentous in the making. The

result. however, when the process was prolonged throughout
the years. has been 110t merely to supplement or modify; it has
been to revolutionalize and transform.'
The two oytstapdipi examp,l.e.sJ>.f.the..c!:c:~~~tx <?( doctrinal resea~.h
.ire the law petorts and adminis!rative law. About the latter, for insta~e.
it has been remarked:
- - - --' .. _~--_._-~
The creation of.a body of law where none had ~itherto existed
"is a social achievement It is an ..wiliievement not to be "MerS~ti,ID,~~.Ili~~-asJl.r.cminderthaLat parti~Jar p~r!~~..s
in the history of law the creative working out of legal doctrine
1$ both necessary andcri-iTcal ilOd]ustitiablya paramount concern
of legal research. 4
.. ,.-......- . ' - - .-~.-

------

It may not be out of place to mention that in India it was the

pioneering work of A.T. Markose on Judical Control of Administrative
Action and the seminars organised and the work done by the Indian Law
Institute in the area of administrative law which had created an awareness
of the importance of the subject for the legal system.
With the emergence Qf t.he..sPEologica~cho<&.the cre~tive r~l~ _oj
lawyers apdju.d~ha1~.lO~~j~~.d _e':'p'li.~t!y.:._I~e writings
ofthe soci()logicaljl1.ris~s ~.Qm~Jiied_ with..!I!e phange in,p.o1iti~.al.p'h!los~p~y
~11!~J}i..JQi~3..e,z jaj!e to th~ welJare .1tM~ 51r_~~.re rather the result 01 t~is
metamorphosis. One can see the seeds of the conception of Jaw as a
catalytic agentto advance human welfare in the following famous
remarks of Justice Holmes:
T.!t~Jife ~f the law-hil~t beenhi~ic : it has been experienc;..
The J~JtP-~essities of the time.....t e prevalent moral ~nd political
theories . intuitions ..Q(p'!tilicpolicy. avowed or unconscious...
even the prejudices which jl.!dies sh.~e-Wii11 tneti fellOwmen.
have had a good deal more to do than the syllogism In-determining
die rules by which men should be governed.!
-. --.--

The writings ~f Dean Roscoe_.~o,!1.!!~.!. however. depict more cl~~rl,y

a.nd lOrcefWly ilie.Ja$k.9L~\Y ~_b_eth.~ adjus~~tmt of h~!"anreJati~~~hip
in society to the best possible advantage. Thus. he says :

3. Jd. at 26-28.
4. N.D. Grundstein, "Administrative Law and the Behavioral and Management
Sciences", 17 J. Legal Ed. 121 at 122 (1964-65).
5. Oliver Wendell Holmes, The Common Law I (1881).

DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH

71

For the purpose of understanding the law of today I am content

with a picture of satisfying as much of the whole body of human
wants as we may with the least sacrifice. I am content to think
of law as a social institution to satisfy social wants-the claims
and deniaiids and expectations involved in the existence of
civilized society-by giving effect to as much as we may with
the least sacrifice, so far as such wants may be satisfied or such
claims given effect by an ordering of human conduct through
politically organised society. For present purposes I am content
to see in legal history the record of a continually wider recognizing
and satisfying of human wants or claims or desires through
social control; a more embracing and more effective securing of
social interests; a continually more complete and effective
elimination of waste and precluding of friction in human enjoyment
ofthe goods of existence-in short, a continually more efficacious
social engineering.6

-c

At another place he says

As the saying is, we all want the earth. We all have a multiplicity

of desires and demands which we seek to satisfy. There are very

many of us but there is only one earth. The desires of each
continually conflict with or overlap those of his neighbours. So
there is, as one might say, a great task of social engineering.
There is a task of making the goods of existence, the means of
satisfying the demands and desires of men living together in a
politically organised society, if they cannot satisfy all the claims
that men make upon them, at least go round as far as possible.
This is what we mean when we say that the end of law is
justice ....We mean such an adjustment of relations and ordering
of conduct as will make the goods of existence, the means of
satisfying human claims to have things and do things, go round
as far as possible with the least friction and waste.
The task of law as that of social engineering has come to be
accepted as a dogma by the civilized societies all over the world including
India. The chapters on fundamental rights and directive principles of
state policy of the Constitution of India embody this philosophy. The
concern of law as an instrument of economic and social justice has
grown to such an extent that there is hardly any human conduct which
has been left untouched by law. The result is that there has been an
explosion of laws and the law has become all pervading. We have come
6 . Roscoe Pound, Introduction to the Philosophy oJLaw 4 1 ( 1 963).
7. Roscoe Pound, Social Control Through Law 64-65 ( 1 968).

72

LEGAL RESEARCH AND METHODOLOGY

to live in an age of laws. The legislative mill has been constantly pouring
out laws. This is not the only factory for producing statutory laws. The
executive made law (delegated legislation) has become much more
important both quantitatively and qualitatively.
Jhe present emphasis of law on achieving the social welfare of the
people along with the fact of great economic and technological advancements have placed great burdens on law ~.e....2!!!1S_Qf.la~. Because
of the necessity to enact Iaw~-Q!l, complex and ~erse...s~~ts it has
become inevliablefor 'the 'iesislature_!~_l~~v~gaps J~. jhe s.tatl,lt.es,-'aridg,e~etlf~-gt~'aiscretion
!llesoUJ:t$tp evolve doctrines, principles.
standards and norms themselves in the process of _a"pp'licati~r:t of the law
from case "to case. Further, the complexity of laws has given scope for
ambiguities Tn llie~~uiorylanguageorscheme. Then a word used ina
statute, which may appear to be fairly clear at the time of enactment of
the statute, may acquire vagueness when the occasion of its application to
a case by the court arises. Similarly, the plain statutory language maYloSe
Its plainness at the time of actual controversy because oTihe human
limitation to foresee all the difficulties and' nuances of the problem. A few
examplesmay be taken from "the Indian statute book to illustrate some of
these points.
"
An example, par excellence, of the legislature conferring discretion
on the courts is that of article 19 of the Constitution which permits the
state to impose reasonable restrictions on the various rights guaranteed
to the citizens by that article. There is no definite test to judge the
reasonableness of a restriction, and the Supreme Court itself has stated:

"'ii

In evaluating such elusive factors and forming their own

~~ri~eption of what is reasonable in all the circumstances oCa
given case, it is inevi~"aQJ.c; tlmttb..!Q@J.1mi!oso.l?hy..a nd the scale
~~~s of the}u~g~s p~rticipatiJ.1g in ~h~ ~e~ision sg'<>J!l<LPlay
an Important part, and the limit to their interference with legislative
iUdgmerit in such cases can only be dictated by their sense of
responsibility and self restraint and the sobering reflection ,that
'the Constitution is meant not only for people of their way of
thinking but for all. that the majority of the elected representatives
of the people have, in authorising the imposition of the restrictions.
considered them to be reasonable.!
In considering reasonableness of a restriction the task before the
courts is to judge the objective of public interest to be served by the
restriction against fairness to the individual.
The Indian statute book is replete with provisions where the legislature
has given discretion to the courts to develop the law from case to case.
8. State of Madras v . VG. Row, AIR 1952 SC 196 at 200,

DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCH

73

A few examples may be given here. Use of such phrases as "just and
equitable't.? "public order", 10 "inexpedient'"?" "reasonable opportunity of
being heard" 1I "reasons to believe",12 "undue and unreasonable preference't.!' "acting under colour of office", 14 "reasonable sum".'! "rash
or negligent act",16 "reasonable apprehension";'? "reasonable cause'"!
"oppression and mismanagement't.!? are only a few of the illustrations
amongst the host of statutory provisions. Also even such words or
phrases as "sale" for sales tax purposes, "interstate sale", "annual letting
value", "fraud" for declaring a marriage as "nullity", "industry", "industrial
dispute", "business expenses", "best judgment assessment", "obscenity"
and innumerable such other phrases have presented a wide scope for the
exercise of judicial discretion. It may not be wrong to say that the
amorphous mass of the present day statutory provisions take concrete
shape and form in the great laboratories of the law courts, and this
applies even to those statutory provisions which appeared to be precise,
articulate and clear at the time of their enactment. The fact is that "all
rules have a penumbra of uncertainty where the judge must choose
between alternatives"."?"
Apart from this, while interpreting certain clauses, the judiciary itself
has evolved certain standards which are vague and flexible. Three good
examples in this respect from the area ofconstitutional law are "reasonable
classification" under article 14, "direct and indirect restriction" under
part XIII of the Constitution, and "the basic feature theory" for purposes
of amending the Constitution. A few branches of the law have been more
or less entirely developed by the judiciary. The two modem illustrations
are labour law and administrative law. Taking a leaf from administrative
law, such judicially created phrases as "excessive delegation" (to test the
validity of the delegated legislation) or "ultra vires" (to test the validity
of administrative action) or "no legal evidence rule", or "error of law
apparent on the face of the record" leave an area of wide discretion for
9. Section 433, the Companies Act, 1956.
10. Section 3, the Maintenance of Internal Security Act, 1971.
IDa. Section 7-A, the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
I I. This phrase is used in innumerable statutes, see particularly, article 311 of the
Constitution of India.
12. Section 147, the. Income Tax Act, 1961.
13. Section 28, the Indian Railways Act.
14. Section 99, the Indian Penal Code.
15. Section 74, the Indian Contract Act.
16. Section 304-A, the Indian Penal Code.
17. Section 10, the Hindu Marriage Act, 1955.
18. Ibid.

19. Sections 397 and 398, the Companies Act, 1956.

19a. Hart, The Concept of Law 12 (1961).

74

LEGAL RESEARCH AND METHODOLOGY

the courts to operate. In doing so they have to draw nice lines between,
and balance, the interests of the individual to protect him from arbitrary
government and administrative effectiveness and public interest. The
application of these phrases in a given situation calls for a great deal of
value judgment and "painful adjustment of conflicting values".20
A brief survey of the statutory provisions leads to one inescapable
conclusion. In modem times, case-law based research is concerned to
a very large extent with considerations of social value, social policy and
the social utility of law and any legal proposition. It is naive to think that
the task of a doctrinal researcher is merely mechanical-a simple
application of a clear precedent or statutory provision to the problem in
hand, or dry deductive logic to solve a new problem. He may look for
his value premises in the statutory provisions, cases, history in his own
rationality and meaning of justice. He knows that there are several
alternative solutions to a problem (even this applies to a lawyer who is
arguing a case before a court or an administrative authority) and that he
has to adopt one which achieves the best interests of the society. The
judges always unconsciously or without admitting think of the social
utility of their decisions, but cases are also not infrequent when the
Indian Supreme Court has consciously and deliberately incorporated
social values in the process of its reasoning. To take a few examples
here, in Bengal Immunity Co. v. State of Bihar. 21 the court, while
overruling State of Bombay v. United Motors,22 stated:
All big traders will have to get themselves registered in each
State, study the Sales Tax Acts of each State. conform to the
requirements of all State laws which are by no means uniform
and, finally, may be simultaneously called upon to produce their
books of account in support of their returns before the officers
of each State. Anybody who has any practical experience of the
working of the sales tax laws of the different States knows how
long books are detained by officers of each State during
assessment proceedings.... The harassment to traders is quite
obvious and needs no exaggeration.P
In Jyoti Pershad v. Union Territory of Delhi,24 the Supreme Co uri
observed:
The criteria for determining the degree of restriction on the right
to hold property which would be considered reasonable, are by
20. Friedmann. Law in a Changing Society 384 (1972).
21. AIR 1955 SC661.
22. AIR 1953 SC 252.
23. Supra note 21 at 687.
24. AIR 1961 SC 1602.

DOCTRINAL AND NON-DOCTRINAI_ LEGAL RESEAR(H

75

no means fixed or static, but must obviously vary from age to

age and be related to the adjustments necessary to solve the
problems which communities face from time to time" "I flaw
failed to take account of unusual situations of pressing urgency
arising in the country, and of the social urges generated by the
patterns of thought-evolution and of social consciousness which
we witness in the second half of this century, it would have to
be written down as having failed in the very purpose of its
existence... .In the construction of such laws and particularly in
judging of their validity the Courts have necessarily to approach
it from the point of view of furthering the social interest which
it is the purpose of the legislation to promote, for the Courts ,are
not, in these matters, functioning as it were in vacuo, but as
parts of a society which is trying, by enacted law, to solve its
problems and achieve social concord and peaceful adjustment
and thus furthering the moral and material progress of the
community as a whole. 25
In the famous Go/ak Nath v, State of PU11;ab,26 Subba Rao, C.J"
said:
But, having regard to the past history of our country, it could not
implicitly believe the representatives of the people, for uncontrolled
and unrestricted power might lead to an authoritarian State, It,
therefore, preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the
sentinel of the said rights and the balancing wheel between the
rights, subject to social control. 27
The court's concern with social justice is depicted forcefully in the
following observations of Bhagwati, J., in Kanwarlal v, Amurnath :21\
This produces anti-democratic effects in that a political party or
individual backed by the affluent and wealthy would be able to
secure a greater representation than a political party or individual
who is without any links with affluence or wealth. This would
result in serious discrimination between one political party or
individual and another on the basis of money power, and that in
its turn would mean that "some voters are denied an 'equal'
voice and some candidates are denied an 'equal chance?" .... The
democratic process can function efficiently and effectively for
25.
26.
27.
28.

Id. at 1613.
AIR 1967 SC 1643.
Id. at 1655.
AIR 1975 SC 308.

76

LEGAL RESEARCH AND METHODOLOGr

the benefit of the common good and reach out the benefits of
self government to the common man only if it brings about a
participatory democracy in which every man, however lowly or
humble he may be, should be able to participate on a footing of
equality with others. Individuals with grievances, men and women
with ideas and vision are the sources of any society's power to
improve itself. Government by consent means that such individuals
must eventually be able to find groups that will work with them
and must be able to make their voices heard in these groups and
no group should be insulated from competition and criticism. It
is only by the maintenance of such conditions that democracy
can thrive and prosper and this can be ensured only by limiting
the expenditure which may be incurred in connection with
elections, so that, as far as possible no one single political party
or individual can have unfair advantage over the other by reason
of its larger resources and the resources available for being
utilised in the electoral process are within reasonable bounds and
not unduly disparate and the electoral contest becomes evenly
matched. Then alone the small man will come into his own and
will be able to secure proper representation in our legislative
bodies.
The other objective of limiting expenditure is to eliminate. as far
as possible, the influence of big money in the electoral process.
If there were no limit on expenditure, political parties would go
all out for collecting contributions and obviously the largest
contributions would be from the rich and affluent who constitute
but a fraction of the electorate. The pernicious influences of big
money would then play a decisive role in controlling the
democratic process in the country. This would inevitably lead to
the worst form of political corruption and that in its wake is
bound to produce other vices at all levels.I?
Finally, while considering the judges' role in determining questions
of "public policy", Mathew, J. said in Murlidhar v. State 4 u.P. :2l){/
There is no alternative under our system but to vest this power
with judges. The difficulty of discovering what public policy is at
any given moment certainly does not absolve the judges from the
duty of doing so. In conducting an enquiry...judges are not
hidebound by precedent. The judges must look beyond the narrow
field of past precedents, though this still leaves open the question,
29. /d. at 314-15.
290. AIR 1974 SC 1924.

DOCTRINAL AND NON-DOCTRINAL I.GAL RSEARCII

77

in which direction he (sic) must cast his (sic) gaze. The judges are
to base their decision on the opinions of men of the world, as
distinguished from opinions based on legal learning. In other
words, the judges will have to look beyond the jurisprudence and
that in so doing, they must consult not their own personal standards
or predilections but those of the dominant opinion at a given
moment, or what has been termed customary morality. The
judges must consider the social consequences of the rule
propounded, especially in the light of the factual evidence available
as to its probable results. 29b
~hu~tQ~.object~ve and philosophy of doctrinal re,~Earcher has to be
the same as that of sociological jurisprudence; that is, social engineering
tlirough law. In this sense he is a sociological jurist, thoug!!.J! is_~~~at
his liberty of op-eratlon 'is' -res'fiicled' to some extent by the statutory
language, existing doctrines and also the consciousness thaLL.sound
f~~_s!,st~m_shoufd move towards certainty and stability of law which
are social values to be desired. But, as seen above, the law in modern
ti'ilieSleaveSa-iarge'scope,a tinge leeway, and the-leeway'may'be more
i'!.~tEe me'S aniness inothers but it is there, for moulding anQ aE~jHing
it to the society and to social change. This has been additionally fac!liJilted
iii"Tndiilby the Supreme Courtexpressly agreeing as a principle...t.o.r.eview
Its own decisions.' and a number of instances can be cited where: the
c~~,~ _d~~e~ .. !~~ ~process began with the court .Qv~I'J!lILqg jhe
United Motors cas~o in the Bengal Immunity case" and its high watermark
was reached when in the famous Golak Nath case,32 it overruled its
consistent holding in the two earlier cases-Shankari Prasad 33 and
Sajjan Singh. 34 A few other instances of such overruling are: Director
of Rationing v. Corporation of Calcutta'? by Superintendent and
Remembrancer of Legal Affairs v. Corporation of Calcutta/" Indian
Airlines Corporotion v. Sukhdeo Rai 37 by Sukhdev Singh v. Blwgatram,J8
Sardarilal v. Union of India'? by Samsher Singh v. State of Punjab.t"

29b. /d. at 1930.

30.
3 I.
32.
33.
34.

State of Bombay v. United Motors. supra note 22.

Bengal Immunity Co. v. State of Bihar, supra note 21,
Golak Nath v. State of Punjab, supra note 26.
Shankari Prasad v. Union of India, AIR 1951 SC 458.
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

35.
36.
37,
38.
39.
40.

AIR
AIR
AIR
AIR
AIR
AIR

1960
1967
1971
1975
1971
1974

SC
SC
SC
SC
SC
SC

1355.
997.
1828.
1331.
1547.

2192.

78

LEGAL RESEARCH AND METIIODOLOGr

Any number of cases can be cited when the court without expressly
overrulmg Its earlier decIsions a~artea from tnemor weaKened their
..~,_.. ,--~.~- ---- '-'-'-~--'-'''' .. _.
illthoflty' or modified the principles laid down (sometimes in t ie garo of
aevelopmg them iuriherrSuch cases are demonstrative of tht: fact that
the language of the statute1S-riot petr1f1ed..for a[1 fhhes- to come alief i IS
ineaning and impact c~a.n&eIn. th~ .c,!ts:lytic ha~ds OC~!;<O:l~e~~
The.jjIJb w is WJll,lnwjndfl.lUU.Jbe .fact that sometimes a doctrinal
rese;cher mi)' Jack ~. uliJitC\{!.an, ~m2[Qa.h....alld,'hijQiecoiiC'ern maY}~
te~t__th~.J()i.i~~, co~si~!encL~l!5! t.t~hnif&.s()!.11!4J}~s.s ,g1...~_~~~.r a
legal proposition by analysing it with reference to the precedential
symmetry and' on the anvil of strjcJ.l!t~JaLQ!~a,ningllD'..Ke_ep!ng:gramu1ar
and d!ct~Qnary in (me hand and the statutory lang,uage in~h.e.-2!h.c:.r).
Technical soundness of the law is not unimportant "bliilt shol.!lq .1].ot
o~rafe m v~~_uum-andought"to be balanced, wherever there is scope.
against social policy and motes' of-the'-society:,
,

"".-----.--

rc:

II. Sociology of law

From where does a doctrinal researcher get his social policy. social
facts and social values? The answer is, his own experience, observation.
reflection and study of what others have done before him in a similar or
same kind of situation. However, it will certainty add value to his
research if he gets an opportunity to test his ideas by sociological data.
And this is what the author understands by the sociology of law. In other
words, the sociology of law tries to investigate through empirical data
how law and legal institutions affect human attitudes and what impact on
society they create. It seeks answers to such questions as-are law and
legal institutions serving the needs of the society? Are they suited to the
society in which they are operating? What factors influence the decisions
of adjudicators (courts or administrative agencies)? Are the laws properly
administered and enforced (or do they exist only in text-book)? -The
sociology of law also concerns itself with the identification and creating
an awareness of the new problems which need to be tackled through
law.
Just as a matter of semantics. the author will use the term "sociology
of law" where the major tools of a legal researcher are empirical and
sociological data. This is to be distinguished from sociological
jurisprudence and, as stated earlier, a doctrinal researcher has to be but
a sociological jurist because of the wide discretion available to him in
modern times to make his value choices.
Though sociology of law may have great potentialities. yet a few
caveats must be entered here. Firstly, sociological research is extremely
time consuming and costly. It has been stated: "Socio-legal research is
more expensive, it calls for additional training; and it entails great

DOCTRINAL AND NON-DOCTRINAL LEGAL RESEARCII

7')

commitments of time and energy to produce meaningful results, either

for policy-makers or theory-builders.?"' The decisions in human affairs.
however. cannot await the findings of such studies and must constantly
be made. and herein comes the value and utility of doctrinal research.
Thus, "Doctrinal legal research ... has had the practical purpose of
providing lawyers, judges and others with the tools needed to reach
decisions on an immense variety of problems. usually with very limited
time at disposaJ."42 In this context K.C. Davis also observes:
[I]t may be a hundred or several hundred years before we get
truly scientific answers to some of the questions I am trying to
explore, and we need to make some judgments in the meantime.
Some of the most useful thinking can be unscientific,
impressionistic, intuitive based on inadequate observation or
insufficient data or wild guesses or imagination. Scientific findings
are obviously the long term objective, but a good many judgments
which fall far short of scientific findings are valuable. respectable
and urgently needed.v'
Secondly, law-sociology research needs a strong base of doctrinal
research. Upendra Baxi rightly points out that "law-society research
cannot thrive on a weak infra-structure base of doctrinal type analyses
of the authoritative legal materials.T'" The reason is simple. The primary
objectives of the sociology of law are to reveal, by empirical research.
how law and legal institutions operate in society, to improve the contents
of law, both in substantive and procedural aspects, to improve the
structure and functioning of legal institutions whether engaged in law
administration, law enforcement, or settlement of disputes (adjudicatory
process), and these objectives cannot be achieved unless the researcher
has in-depth knowledge of the legal doctrines, case law and legal
institutions. Further, such a knowledge is essential for identifying issues,
delimiting areas, keeping the goals in view, and determining the hypotheses
on which to proceed. In the absence of these, the sociological research
will be like a boat without a rudder and a compass, left in the open sea.
The whole exercise may be fruitless. The authors of the monograph on
Law and Development were perhaps conscious of this when they
said:

41. International Legal Center, Law and Development, 10, (New York. 1(74).
42. Vilhelm Aubert (Ed.), Sociololy of Law 9 (1969).
43. K.C. Davis, "Behavioral Science and Administrative Law", 17.J. l.egu! F.cI 137
at 151-52 (1964-65).
44. Upendra Bax i, Sacio-Legal Research ill India : A Programschrijt 7 (ICSSR.
1975).

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[W]e should make clear that we do not denigrate doctrinal

research, which has a proud tradition of outstanding scholarship.
Nor do we seek to minimise the importance of doctrinal research
to the establishment and functioning of a legal system and thus
to society. We are also conscious that in many of the countries
we were concerned with, there is an absence of basic doctrinal
research and indeed not infrequently the tools and raw materials
of such research. While the situation varies between countries,
we recognise that in some countries doctrinal research could
claim a high priority in allocations of the resources available for
legal research.P
In India where we still lack the infra-structure of doctrinal research,
such a research will naturally have to claim high priority.
Thirdly, sociological research may help in building general theories,
but it seems inadequate where the problems are to be solved and the law
is to be developed from case to case. For instance, as a matter of general
theory it is axiomatic that governmental powers need to be checked as
"power corrupts and absolute power corrupts absolutely", but too much
check may result in governmental ineffectiveness. This necessitates that
when a case comes before a court in which abuse of power by the
executive is alleged, pragmatic considerations ought to control the
decision-making. Since the law to control governmental action develops
from case to case, it will not do to theorise that either there should be
no control over governmental action or there should be adequate control.
That is why it has been said about the ultra vires doctrine, which is the
basis of judicial review in case of writs :
The ultra vires doctrine provides a half way basis of judicial
review between review in appeal and no review at all.. ..The half
way review, the extent of which is not always clear, creates
uncertainty about judicial intervention in administrative action.
Sometimes, the courts may feel like intervening because they
feel strongly about the injustice of the case before them ;
sometimes they are not sure of injustice and wish to give due
deference to the expertise of the administration and uphold the
decision.t"
It is beyond the comprehension of the author how we can improve
the contents of the ultra vires doctrine by sociological research. To
illustrate the point by another example, take the case of the concept of
"sale" for purposes of sales tax. The tax is imposed only on sale and not
45. Supra note 41 at 19.
46. M.P. Jain and S.N. Jain, Principles ofAdministrative Law 363 (\973).

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on a contract for labour or service. Now every sale of a commodity does

involve some labour. Still there may be clear cases of sale and clear
cases of labour contract (or works contract) but there may be innumerable
penumbral situations where it will be difficult to say on which side a
particular transaction falls.
Fourthly, the function of law in society is not only to follow or adapt
itself to public opinion (assuming that it is possible to know correct
public opinion) but also to give a lead and mould public opinion. When
the law should follow one course or the other may not always be
answered on the basis of sociological data but on the basis of one 's
maturity of judgment, intuition, and experience, though sociological
research may be of some informational value to the decision-maker.
Fifthly, on account of complicated settings (and this particularly
applies to economic data) and variable factors, we may again be thrown
back to our own pre-conceived ideas, prejudices and feelings in furnishing
solutions to certain problems. For instance, there has been the perennial
problem of governmental control of business or non-governmental control,
private enterprise or public enterprise (or efficiency or inefficiency of
the one or the other), and individual liberty or governmental powers. We
may not be able to answer these questions basic to any society through
scientific study.47 Even if one were to attempt such a study, it would
require such huge resources (owing to the vastness of the subjects of
inquiry) that one may not be able to have them at one's command.
Coming to a lower plane, under part XIII of the Constitution, states
cannot discriminate against interstate commerce, but at times it is not
easy to determine whether there has been discrimination or not and an
empirical study may not easily furnish the answer. This is clear from the
following extract from an article by the author :
In determining the validity of a law against a challenge on
account of discrimination against interstate commerce, multiple
taxation of such commerce, or undue burdens on it, the judiciary
has an important though a difficult role to play. Should the Court
go merely by patent or formal discrimination? Should it cut
deeper and go behind the avowed purpose of the law and attempt
to find out its actual effects? Should it examine the law in
question in the context of the entire economy? For example,
state A imposes a fifteen per cent tax on cost of alcoholic liquor
47. Kelsen says: "The issue between liberalism and socialism, for instance, is, in
great part, not really an issue over the aim of society. but rather one as to the correct
way of achieving a goal as to which men are by and large in agreement; and this issue
cannot be scientifically determined, at least not today." General Theory ofLaw and
Stale 7 (196\).

LEGAL RESEARCH AND METHODOLOGY

82

manufactured in that state. Now state B, which IS importing

liquor from state A, imposes a tax of twenty per cent on liquor
manufactured within it. How much tax should state B impose on
imported liquor? One view could be that it should impose a tax
of twenty per cent (i.e. the same percentage of tax which it is
imposing on intrastate liquor). Another view which could be
taken is that it should impose a tax of only five per cent as a
higher tax would put a burden on the imported liquor than the
intrastate liquor and would be discriminatory against the former.
There are several limitations in the latter approach. First, since
the intrastate tax on liquor is likely to differ from state to state,
the importing state will be required to impose different taxes on
imported liquor depending on the state from which it is coming.
It is doubtful whether such a tax would be possible to administer.
Second, if the tax involved is other than excise, say, sales tax,
it may be practically difficult for the importing state to know the
account of tax which an imported commodity has actually borne
in the exporting state. The structure of sales tax differs from
state to state. In some states the system is multiple point, in
some two point, in some single point on the first sale and in some
single point on the last sale. The incidence of local sales tax on
a commodity exported to another state will depend on the system
of sales tax in that state and the number of local sales. If equality
is to be achieved in the sense suggested above, then it would not
only mean the different rates on the sale of the same imported
commodity within a state depending upon the state from which
it is imported but also the rates would have to vary on a
commodity from the same state depending upon the number of
local sales in that state-a practical impossibility. Third, if real
equality is to be attained in the example relating to liquor, why
stop only at the excise duty. Why not consider all other taxes like
the propety tax and the taxes on the raw materials going into the
manufacture of liquor which will have an impact on the cost of
production of the liquor. Under the equality formula suggested
above, these should also be taken into account by the importing
state. 4 8
In spite of the readiness of the United States Supreme Court to be
receptive to economic and social data, the following quotation again is
indicative of the difficulties in this regard:
48. S.N. Jain, "Freedom of Trade and Commerce and Restraints on the State Power
to Tax Sale in the Course of Interstate Trade and Commerce". 10 JIL/547 at 563-64
( 1968).

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83

In the United States, in the non-tax area the Supreme Court

usually goes deeper into various factors in order to determine
whether the law was placing an "undue" burden on interstate
commerce which "frequently entails weighing evidence, drawing
nice lines, and making close and difficult decision on important
policy questions." However, inthe tax area, probably because of
greater difficulty in evaluating complicated economic factors
involved, this has not been the general approach.... 49
Sixthly, though law-sociology research is of recent origin, yet it is
common knowledge that even in the United States, where this kind of
work has been done mostly, such researches have yet to show their
potentiality in terms of translating the findings into legal propositions and
norms. Amongst others, one reason may have been the failure to select
subjects with such potentialities. Any information has some value, but
when huge resources are to be staked in collecting sociological data it
may be better to use them on carefully planned subjects where the
research may lead to ultimate improvement of the contents of the law.
Thus, with regard to decision-making research, Davis observes :
Research on decision-making excites many people, including
Professor Grundstein, and the quantity of such research is
voluminous-even staggering. A single bibliography on decisionmaking research fills a sizable volume. so
He further says :
The down-to-earth Behavioral Research Council concludes as to
decision-making research: "The major result in the field, to date,
has been the development of a variety of theories, the testing of
which has only begun .... Little can be said about the usefulness
of the field until the testing (and in some instances the stating of
the theories in testable form) has been accomplished.t''"
Upendra Baxi, in an otherwise excellent paper, also seems to commit
the error of suggesting some of the socio-legal research topics without
stating the objectives or hypotheses from the point of their possible uses
to the legal community and law reformers, or how the researches in
those subjects may improve the normative content of the legal system or
the structure of the legal institutions. This is a major weakness of his
paper, though, of course, the collection of information on the lines
49. Id. at 565-66.
50. Davis. supra note 43 at 142.
51. Ibid.

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suggested by him may be valuable for its own sake. Taking at random
three projects suggested by Baxi, comments may be made on them. He
says:
We do not have organised information on turnover, in number
and type, of legislative enactments in different states; of timelags between initiation of bills, their passage through the House,
the intervening work of joint select committees, and the timelags between passage and the gubernatorial or the Presidential
assent to the bills. Much less do we have any information on the
quantity of amending and repealing legislation, or of the private
member's bills. 52
It is not understood where Baxi wishes to lead a legal researcher or
a law reformer from the kind of information that he would like to be
collected, that is, what are the goals of such a research ? It may also be
said that with regard to the turnover of legislation it would not be
difficult to find out the same from the annual reports of the Ministries
of Law of the states, the state gazettes, and various other private
publications. Similarly, with regard to private member's bills, the facts
are common knowledge, though we may not have complete and accurate
information (and it seems to be a futile task to obtain this kind of
"accurate" information). With regard to the question of time taken and
the intervening works of the joint select committees, it is not clear as to
what he wants. Does he want quick passage of Bills, excluding the joint
select committees from consideration of Bills or does he want that there
should be greater democratisation in the sense of greater public
participation of the affected interests through the joint select committees'!
Here, perhaps, fruitful results may come out if one were to examine Bills
from the latter aspect and concentrate on why in some cases Bills were
referred to the joint select committees but not in others, since consultation
of affected interests in enacting a statute is a social goal to be achieved.
Further, Baxi points out: "Nor do we have (although useful beginnings
have been made in this direction by political scientists) much data on the
social profiles of national and state legislators".53 Here again one is left
without any idea as to how this kind of information will be of qualitative
value to law researchers or law makers or how it will help in improving
the character and composition of the legislature. Does he want some
kind of educational or professional test to be laid down for the legislators?
With the emergence of the party system and the situation where party
discipline counts more than "intelligence", and the reality of the executive
52. Baxi, supra note 44 at 25.
53. Id. at 26.

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85

controlling the legislature, it is again not understood what useful purpose

will be served by collecting such a kind of information. To some extent
the information on the lines desired by Baxi is available in the various
"Who's Who",54 Further he says:
Disregarding fine distinctions between administrative 'tribunals'
and other administrative adjudicatory bodies, it would be
scientifically rewarding and socially relevant to examine typology
of litigants before a few selected tribunals/bodies.55
One fails to understand how the study of typology of litigants will
lead one to understand the role of the tribunals in the social context, and
in any case it is well known what types of litigants use these tribunals
(easy recourse is one of the virtues of these bodies). The objectives of
establishing these bodies are accessibility, cheapness, expertise, expedition
and lack of formality. It would be much more rewarding and useful to
study these bodies with a view to finding out as to how far these social
objectives have been achieved in practice (it may be pertinent to point
out that some work on these lines is being done by the Indian Law
Institute);
Perhaps Baxi wants to be modest in his research programme by
suggesting that at the initial stages we should try to gather facts about
the formal legal system, the knowledge of which we seem to lack
woefully. To substantiate him, the author would like to mention an
anecdote. A few years back he was talking to the chairman of a tribunal
which has been in existence for a number of years. He was a man of law.
He told the author that he learnt for the first time that there was such a
tribunal when he was offered its chairmanship by the government. The
suggestion made by Baxi opens up infinite possibilities for research work
and any area or subject can be taken up for fact collection depending
upon the researcher's own equipment, specialisation and value judgment
in terms of priorities. The author's own priorities will be the study of
administrative process and adjudication including their procedures,
administration of the social welfare legislation and land legislation, and
operation of social legislation like marriage and untouchability.
Finally, a word may be said about research methods in collecting
empirical data. It has been said : "In terms of a gross division, there are
only three methods of obtaining data in social research : one can ask
people questions; one can observe the behavior of persons, groups or
organisations, and their products or outcomes; or one can utilise existing
54. See. for instance. Rajya Sabha, Who's Who (1974). Also see. Socio-Economic
Background of Legislators in India (prepared by Research and Information Ser vice.
Lok Sabha Secretriat), 21 Jour. of Pari In! 23 (1975).
55. Supra note 44 at 31.

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records or data already gathered for purposes other than one's own
research."56 The author is not trained in scientific methods of collecting
data and whatever little is said is based on common knowledge. A sociolegal researcher can get much valuable information by his own observations
and by studying existing records, (here the problem lies in getting access
to the records, since the government is extremely chary of permitting
anyone to see its records), but a note of warning may be sounded against
the method of collecting data by interview. Two broad types of data
collected through personal interviews are factual information and opinions
and views about a particular matter. About the limits of this method it
has been stated :
One of the limitations of the interview is the involvement of the
individual in the data he is reporting and the consequent likelihood
of bias. Even if we assume the individual to be in possession of
certain facts, he may withhold or distort them because to communicate them is threatening or in some manner destructive to
his ego. Thus, extremely deviant opinions and behavior, as well
as highly personal data, have long been suspect when obtained
by personal interviews....Another limitation on the scope of the
interview is the inability of the respondent to provide certain
types of information ....Memory bias is another factor which
renders the respondent unable to provide accurate information. 57
A few other limitations are the problems of communication process,
motivation of the respondent and his general ability, expertise of the
interviewer, the clarity of research goals, etc. Comparatively speaking,
an interviewer may be able to get information of much greater utility
when it relates to facts (but not relating to the respondent) than opinions
and views. We have to be extremely cautious with opinionated data
collecting. "Opinion" may mean the opinion of one ignorant individual
multiplied by a certain multiplier of the same quality. This is very aptly
demonstrated by an empirical study of the Indian Law Institute on
"Assessing the Degree and Depth of Acceptance of the System of Law
in India in terms of (i) Awareness, (ii) Value Compatibility, and (iii)
Pattern of Adaptation".58 Thus, one of the conclusions of the study is:
It is significant that those categories which have a lower level of
awareness also show a lower degree of acceptance of values
inherent in the present legal system. Their views regarding
56. Festinger and Katz (Ed.), Research Methods in the Behavioral Sciences 241
(1953).
57. Cannel and Kahn, "The Collection of Data by Interviewing", Id. at 330-31.
58. Unpublished (1967).

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87

various procedural matters and problems and bottlenecks in the

legal system also show certain stable patterns. But it is amazing
that it is these categories which have the highest percentage of
those who say that the present legal system is "perfectly suitable"
for Indian society. This seems rather intriguing. But the
explanation perhaps is that those groups who have higher levels
of awareness of the legal system and who share the values
implicit in it to a larger extent, are at the same time more
conscious of its maladjustment with the overall socio-cultural
fabric.I?
This study in India was perhaps the first of its kind in the area of
socio-legal research, but it should create an awareness as to what a
socio-legal researcher should not do because of its utter failure to throw
any light on how the Indian legal system is to be improved or adapted
to the value patterns of the Indian people (apart from the value of the
study as signifying some of the too well-known weaknesses or defects
of the system).
To conclude, what is stated above is not to undermine the value of
the sociology oflaw (it can and ought to be used as a valuable supplement
or .~djunct to doctrinal research) but to warn against the over-optimism
of its advocates to expect too much from it. To borrow the language
from the International Legal Center monograph Law and Development,
"[I]t is important...to appreciate the special limits of our contemporary
development theories and to look to social science as an aid but not as
a panacea. "60

III. Certain heresies

The opportunity may be availed here to remove two heresies, It has
often been expressed that the legal community has not been concerned
with development (reference is usually made to economic development)
or shown sufficient awareness about it. This criticism seems to be
justified if the idea is to say that lawyers have not been associated with
the development plans and schemes by the planners and policy makers.
But it does not seem correct to say that lawyers have not concerned
themselves with the problems of development. The major problems,
created by development, requiring solution by lawyers have been the
growth of administrative power necessitating their control to avoid
arbitrariness, and equitable use and distribution of resources. That the
legal community has been deeply involved with these problems is amply
59. u. at 233.
60. Supra note 41 at 23.

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demonstrated by the inclusion of such courses in the legal pedagogy as

administrative law, labour law, governmental regulation of business,
company law and taxation. Even legal research is not lagging behind in
the area of development. A perusal of a few of the studies produced by
the Indian Law Institute should dispel any doubt in this regard. These
are:
(1) Contractual Remedies in Asian Countries; (2) Law of
International Trade Transactions; (3) Law Relating to Irrigation;
(4) Some Problems of Monopoly and Company Law; (5) Government Regulation of Private Enterprise; (6) Interstate Water
Disputes in India; (7) Law Relating to Flood Control in India; (8)
Law and Urbanisation in India; (9) Labour Law and Labour
Relations; (10) Property Relations in Independent India :
Constitutional and Legal Implications; (11) Cases and Materials
on Administrative Law in India; (12) Administrative Process
under the Essential Commodities Act; (13) Interstate Trade
Barriers and Sales Tax Laws in India; and (14) Administrative
Procedure Followed in Conciliation Proceedings under the
Industrial Disputes Act.
The second heresy pertains to the research work done by the Indian
Law Institute. It has been assumed in certain quarters that the Institute
has confined itself only to doctrinal research. Though it is true to say
that it has given priority to doctrinal research, yet it has not ignored
nondoctrinal research altogether. A number of instances of the latter
type of research can be cited : (1) Disciplinary Proceedings Against
Government Servants-A Case Study: This study is based on field work.
"The Institute's staff studied in detail sixty files (twenty each from the
years 1957, 1958 and 1959 which are consecutive files of closed cases
for these years) in connection with Part I and 150 files of closed cases
of the quinquennial period from 1955 in connection with Part II of the
study." This data was further supplemented by more general reports on
disposals provided by the department and by the information gathered
from responsible officers of the department. The research team also
attended formal disciplinary proceedings to gain insight into the operation
ofthe proceedings. (2) Administrative Procedure Fol/owed in Conciliation
Proceedings under the Industrial Disputes Act : This monograph is
based on a study of 373 cases of failure of conciliation and 421 cases
of settlements including award and mutual settlements to arrive at the
conclusions made in the book. (3) Interstate Water Disputes in India :
This study is again based on the actual case files of interstate water
disputes in India and interviews with the officials concerned at the level
of the Central Government. With the help of these files and interviews

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89

the Institute identified the issues requiring solution through law and also
the real reasons for failure to settle these disputes through methods other
than adjudication. (4) Interstate Trade Barriers and Sales Tax Laws in
India ": This study is based on economic data collected through a
questionnaire from the agencies concerned regarding the impact of the
present sales tax laws on interstate commerce. With the help of economic
data it found economic justification for a few of the provisions in the
Central Sales Tax Act. The study also recommended the creation of an
Interstate Taxation Co-ordination Council. This suggestion was
implemented to some extent by the government when in 1968 the Central
Government created four regional councils to discharge practically the
same functions as were suggested in case of the Interstate Taxation Coordination Council. (5) Presidential Assent to State Bil/s - A Case
Study: This study (published as articles in the Journal ofthe Indian Law
Institutes is based on a study of about 300 state Bills sent by the states
to the centre for presidential assent during the years 1956 to 1965. (6)
Assessing the Degree of Acceptance of the System of Law in India in
terms of (i) Awareness. (if) Value Compatibility. and (iii) Pattern of
Adaptation. Reference has already been made to this work in the earlier
pages.