Wednesday, October 9, 2019
Drafting and Use of Questionnaire as a Research Tool in Legal Research Essay
Introduction The word research is derived from the Middle French Ã¢â¬Å"rechercheÃ¢â¬ , which means Ã¢â¬Å"to go about seekingÃ¢â¬ , the term itself being derived from the Old French term Ã¢â¬Å"recerchierÃ¢â¬ a compound word from Ã¢â¬Å"re-Ã¢â¬ + Ã¢â¬Å"cerchierÃ¢â¬ , or Ã¢â¬Å"sercherÃ¢â¬ , meaning Ã¢â¬ËsearchÃ¢â¬â¢. The earliest recorded use of the term was in 1577 Research and experimental development is formal work undertaken systematically to increase the stock of knowledge, including knowledge of humanity, culture and society, and the use of this stock of knowledge to devise new applications (OECD (2002) Frascati Manual: proposed standard practice for surveys on research and experimental development, 6th edition. It is used to establish or confirm facts, reaffirm the results of previous work, solve new or existing problems, support theorems, or develop new theories. A research project may also be an expansion on past work in the field. To test the validity of instruments, procedures, or experiments, research may replicate elements of prior projects, or the project as a whole. The primary purposes of basic research (as opposed to applied research) are documentation, discovery, interpretation, or the research and development of methods and systems for the advancement of human knowledge. Approaches to research depend on epistemologies, which vary considerably both within and between humanities and sciences. In lay man language research means search or find those things which are already in existence. Research work is not something which can be completed in one stroke or in one step. It consists of a number of closely related activities which very often overlap, and therefore, it becomes difficult to ascertain where one step ended and the other began. However, it is important to keep in mind that various steps are not mutually exclusive, nor they are totally separate and distinct. What step should be followed at what time depends on the research . However, the following guide-lines in this regard are significant: 1. Formulation of researcher problem- At the very outset the researcher must choose the area in which he wants to carry on research. In the field of law the researcher has a very wide scope. After selecting the area we are required to select specific topic or subject for the study. Thus formulation of a general topic into a specific researcher problem constitutes the first step in this regard. It can be said that formulation the researcher problem involves two steps: a) Understanding the problem thoroughly: and b) Re-shaping that understanding into meaningful terms to arrive at a concrete result. Thus formulation of research problem is very significant for a researcher and if it is done successfully, a good deal of battle is won. 2. Extensive literature survey- Once a problem is formulated a brief summary of it should be prepared. For this the researcher must undertake an extensive survey of the available literature on the subject: preferably connected with the problem. For this purpose the abstracting and indexing journals, published and unpublished bibliographies should first of all be examined. Academic journals, conference proceedings government reports, reference books and text books, depending on the nature of the problem must be seen. 3. Formulation of hypothesis- When the literature relating to the problem is extensively surveyed researcher should state in clear terms the hypothesis. A hypothesis is the tentative assumption made in order to draw out and test its logical consequences. In its most elementary stage the hypothesis may be any guess, imagination ideas which becomes the basis for action or investigation. It helps in the analysis of the material pertaining to the subject. It helps in delimiting the area of research and keeps the researcher on the right track. 4. Collection of material- A research cannot be said to be duly carried out unless the relevant materials have been examined. But the relevant cannot be examined unless and until they have been collected and compiled. The collection of the relevant materials is most difficult and comprehensive work and requires lot of energy and attention as well as patience. 5. Analysis of material- Once the requisite materials are collected, the researcher undertakes to analyse them. This is also a very important step in the direction of fulfilment of research work. In case of doctrinal research the researcher can proceed smoothly if he is well aware about the principles of interpretation and construction. He is required to examine the fact of each case, the principle applied to that fact, the line of argument taken, relief sought and provided and if necessary the history or legislation, etc. There may be situations in relation to which no statutory provision existed it was decided on the basis of the principle of justice, equity and good conscience. If the bulk of the examined material indicates to a particular direction, the principle so applied should be accepted as general principles and principles not applied should be deemed to have been overlooked. 6. Testing of hypothesis- After analysis of materials or data as the case may be the researcher becomes confident enough to test his hypothesis which he had already formulated. He can examine if the material or data after analysis support his hypothesis or they are contrary to it. The hypothesis testing ultimately results in either accepting the hypothesis or in rejecting it or in making amendment in it. 7. Generalisation and interpretation- The research work whether doctrinal or non-doctrinal will proceed towards generalisation and interpretation if the hypothesis has been tested positive. If it results in negative the question of generalisation and interpretation does not arise. The purpose of generalisation and interpretation is to built up a theory to be applicable in future to adjudicate upon similar and identical problems. This process of generalisation and interpretation, while helping in formulation of a general theory, also raises many important question which may lead to further research and till those question are answered they may be regarded as exceptions to the general theory or principle thus build up. 8. Preparation of report- The penultimate task in a researcher work is to write the report of the exercise done so far. It should be prepared with great care and caution because it is this report that gives credit to the researcher. Objective of research are following: i. To familiarize with a phenomenon or to acquire new insights into an existing fact, that is, Exploratory Research. ii. To determine the frequency with which something occurs or with which it is associated with something else, that is, Diagnostic Research. iii. To portray accurately the characteristics of a particular object, situation or group, that is, Descriptive Research. iv. To test a hypothesis of a causal relationship between two objects, that is, Hypothesis Testing Research. v. To separate fact from speculation and wish, that is, Distinguishing Research. Definition- Research has been defined in a number of different ways. A broad definition of research is given by Martyn Shuttleworth Ã¢â¬â Ã¢â¬Å"In the broadest sense of the word, the definition of research includes any gathering of data, information and facts for the advancement of knowledge.Ã¢â¬ Another definition of research is given by Creswell who states Ã¢â¬â Ã¢â¬Å"Research is a process of steps used to collect and analyse information to increase our understanding of a topic or issueÃ¢â¬ . It consists of three steps: Pose a question, collect data to answer the question, and present an answer to the question. The Merriam-Webster Online Dictionary defines research in more detail as Ã¢â¬Å"a studious inquiry or examination; especially : investigation or experimentation aimed at the discovery and interpretation of facts, revision of accepted theories or laws in the light of new facts, or practical application of such new or revised theories or lawsÃ¢â¬ . The Encyclopaedia Britannica (1911 edition) defines research to mean- Ã¢â¬Å"the act of searching into a matter closely and carefully, inquiry directed to the discovery of truth and in particular the trained scientific investigation of the principles and facts of any subject, based on original and first hand study of authorities or experiment. Investigation of every kind which has been based on original sources of knowledge may be styled research and it may be said that without Ã¢â¬ËresearchÃ¢â¬â¢ no authoritative work have been written, no scientific inventions or discoveries made, no theories of any value propoundedÃ¢â¬ . This definition is probably most exhaustive and meaningful. Meaning and Objective of Legal Research- Ã¢â¬ËLegal researchÃ¢â¬â¢ means research in that branch of knowledge which deals with the principles of law and legal institution. There are three main sources of law, that is, legislation, precedent, and custom. Juristic writings are another important though secondary source of law and their important is dependent on the fact whether it is given due recognition by the courts or the legislature or jurists in solving problems or not. The contents of these sources of law change with the changing requirement of the society and if these changes are not taken into account in interpreting the law, the existing law is bound to be doomed. The aim of law is, therefore, to regulate the human behaviour in the present day society and hence, legal research must be directed to the study of the relationship between the world of the law and the world that the law purports to govern. Generally, law is enacted to regulate the human conduct for the welfare of humankind. It is considered that law should be enacted to protect the interest of a person, society, and the county as a whole. The goal of legal research cannot be distinguished from the goal of law. As law is directly related with the social science, its research is also automatically related with the research of social science. This is the age of democracy and good governance. Democracy and good governance depend upon the rule of law. In democratic society, law is changed for welfare of the people and society along with the pace of time. Alternatively, law shall not be constraint for the development rather it be facilitator. That is why law needs charges. Similarly, legal research is essential to have changes in law for socialization and betterment of the people and society. Now-a-days, legal research is not limited only on the analysing of criminal behaviour, activities of public, court, public prosecutors, legal practitioners etc. but it also includes the protection of environment of all creatures in the world and the development as well. As a result, legal research plays crucial role for the welfare of the humankind and is more important than others to bring positive changes in our society and at the end in the whole humankind. The following are the objectives of legal research- i. To discover new facts; i. To test and verify old facts; ii. To analysis the facts in new theoretical framework; iii. To examine the consequences of new facts or new principles of law; or judicial decisions; iv. To develop new legal researcher tools or apply tools of other disciplines in the area of law; v. To propound a new legal concept; vi. To analyse law and legal institutions from point of view of history; vii. To examine the nature and scope of new law or legal institutions; viii. To ascertain the merits and demerits of old law or institution and to give suggestion for a new or institution in place of old one; ix. To ascertain the relationship between legislature and judiciary and to give suggestion as to haw one can assist the discharge of oneÃ¢â¬â¢s duties and responsibilities; and x. To develop the principles of interpretation for critical examination of statutes. These objectives of legal research as of any other research may be obtained by any of the following processes: i. Evolutive; or ii. Explicative; or iii. Identificatory; or iv. Projective; or v. Collative; or vi. Impact analysis; or vii. Interactive; or viii. Interpretative. Evolutive process : Evolutive research is one which seeks to identify the roots of a social evil and tries to prohibit it by law, eg. Eradication of dowry , prohibition of Sati, prohibition of child marriage, legalising widow marriage, etc. historical facts play most important role in this kind of research. Explicative process- Explicative process is one which tries to ascertain the nature, scope of law in order to fxplain the nature, scope of law in order to explain what law is, e.g. law relating to industrial pollution and legal relating to administrative action and its legal control, matrimonial relief etc. Identificatory process- An identificatory process is one whose objective is to ascertain the people for whose benefit a legal is enacted e.g. research carried on to find out the beneficiaries of land reform, beneficiaries of reservation among Scheduled Castes and Scheduled Tribes and Backwards, the group of industrial establishments kept out of the area of operation of a piece of legislation, e.g. activities outside the area of the Factories Act, 1948, industrial establishments not covered by the Provident Fund Act, etc. employees entitled to the benefit of provident fund and insurance fund, etc. Projective Process- A projective process is one which aims at examining the degree of social acceptance to a policy the State is planning to implement. This kind of research attempts to find out at the very beginning, the mood of the people or masses, or electorate or industrial workers, whether they will accept the proposed scheme or not, or they will accept it with certain modification. Truly speaking, it is a survey beforehand rather than a research work to find out the feasibility of the proposed scheme. Collative process- A collative process is one which tries to find out the effect of existing law, in relation to other existing law, i.e. its objective is to compare the two set of rules to find out which one is more workable and by which the desired effect may be achieved. Impact analysis process- This kind of research is carried on to find out the impact of an established or newly formed legal principle, rule or institution. In the area of planning this kind of study assumes much significance. On the basis of the outcome of the research necessary changes may be made wherever necessary it helps us to change our outlook towards the objective sought to be achieved, thus it is a preliminary steps to law reform. Interactive process- Law does not operate in vacuum. It operates in society. There are a number of other factors, which interact with it. These factors are of various types such as formal or non-formal, permanent or transitory. A legal researcher cannot be insensitive to such factors of society which annihilate the entire fabric of law. Since law is a part of the society, therefore, the law should be such as that it can work in the society. A researcher must take care of- a) The relative autonomy of law in relation to other component of society; b) The relationship between various component within the legal system; and c) The inter-dependence of one or more components of law within the legal system. Interpretative Research process- This kind of research aims at interpreting the various words and phrases used in defining the law. The researcher makes effort to give a particular word, a specific meaning by using his own logic and authoritative opinion of other people. This kind of researcher is confined mostly to the study of statutes, text and judicial pronouncement and is done by analysing the words. It helps acquire clarity, consistency, uniformity in the meaning of legal writing. These objectives of researcher, thus, help us in determining for what purpose the research is directed, and how, the research may be carried on. In the process, the researcher explains the relevant juridical concept, analysis statutory provisions, picks out significant juridical date, formulated principles deducible from judicial decisions and arranges the whole material in some logical order.If the researcher has sufficient aptitude for research, he may identify the problems likely to arise and deduct principles with sufficient prec ision to provide solution to those problems. Tools of Legal Research- In pursuing research for disclosing facts or proving a hypothesis true or false, various kinds of methods can be applied for the successful research. The following research methods collectively or individually can be applied for the successful research as the main methods. A. Observation: Information can be received by observing, visiting and viewing the place, society, events or the things pertinent to the study or research. Observation can be taken as primary and reliable source of information. If a researcher is careful, he/she can get the points that may play the significant role in his research or study. Observation is a method that is common in the research of legal and social science. Observation should be guided by a specific research purpose, the information receive from the observation should be recorded and subjected to checks on the trail of reliability. B. Questionnaire: In questionnaire method, a researcher develops a form containing such questions pertinent to his study. Generally, the researcher prepares yes/ No questions or short answer questions. In questionnaire method, researcher distributes such forms to the people to whom he/she deems appropriate. The people, to whom the questionnaires have been distributed, should answer that what they have known by filling out the form and return it to researcher. C. Sampling: When the subject of research is vague, comprehensive and when each indicator cannot be taken by virtue of financial constraint, time and complexity, etc. then the researcher can randomly collect data/sample depending on the reason. This is called as sampling method. For instance, in a demographic research, part of population represent various groups can be taken into consideration That is why, it is said that sample is a method that saves time and money. D. Interviews: A researcher can receive information sought by him/her asking people concerned through interview. It is a direct method of receiving information. Interview can be generally held asking questions in face-to-face contact to the person or persons and sometimes through telephone conversation. This method is common in the research of legal and social science. In this method, the researcher has to use less skill and knowledge to receive information he/she had sought. Interview is known as an art of receiving pertinent information. In the opinion of P.V. Young, interview can be taken as a systematic method by which a person enters more or less imaginatively into the life of a stranger. E. Case study: Case study is taken as one of the important and reliable methods for legal research. Case study can be defined as a method of research where facts and grounds of each legal issue are dealt with by taking individual case. Case study is a method of exploring and analysing of life of a social unit such as a person, a family, an institution, a cultural group or even entire community. It is a way of organizing social data so as to preserve the utility character of the social object being studied.11 Keeping in view to the matters above, we can state here that the case study is a method of legal research to explore and analyse the fact and data of a social unit and to organize social data for prescription of useful character and society.