Hutchinson, T; Duncan, N --- "Defining and describing what we do: doctrinal legal research" [2013] LegEdDig 41; (2013) 21(3) Legal Education Digest 32

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Defining and describing what we do: doctrinal legal research

T Hutchinson and N Duncan

Deakin Law Review, Vol 17, No.1, 2012, pp 83-119

Now, more than ever, it is imperative that academic lawyers, working within an increasingly sophisticated research context, explain and justify what they do when they conduct ‘doctrinal research’. Lawyers need to explicate their methodology in terminology similar to that used by other disciplines.

The doctrine in question includes legal concepts and principles of all types – cases, statutes, and rules. ‘Doctrine’ has been defined as ‘[a] synthesis of various rules, principles, norms, interpretive guidelines and values. It explains, makes coherent or justifies a segment of the law as part of a larger system of law. Doctrines can be more or less abstract, binding or non-binding’. It follows that doctrinal research is research into the law and legal concepts.

The research landscape in universities has changed significantly in the last 20 years. There is more emphasis on group, interdisciplinary and empirical research rather than there was under the older paradigm, particularly common in law faculties, of an individual legal researcher working alone.

In Australia, the operating grant is no longer ‘as of right’ but tied to research outcomes and student numbers. In the United Kingdom, universities are faced with the withdrawal of government grants to cover teaching; they are now replaced by student fees of up to £9000 and intake controls linked to entry qualifications. The importance of research outputs has prompted a ‘publish or perish’ mentality. Academics are being directed towards publication in refereed or peer reviewed journals with academic audiences, rather than practitioner journals where, arguably, their research may have more impact. Authoring student texts or disseminating research knowledge to the broader community generally receives less ‘kudos’.

Governments in both Australia and the UK have recognised the importance of research for economic development. All aspects of university operation are being regulated more directly than ever before in Australia, with the establishment of the Tertiary Education Quality and Standards Agency (TEQSA) and a new Australian Qualifications Framework (AQF), to ensure consistency in accreditation of new courses and high quality outcomes.

In the UK, an incoming Labour government in 1997 increased funding for all aspects of higher education. This period of relative largesse was curtailed by the global economic crisis and in 2009 the government identified cuts of a total of £398 million in the Annual Grant for higher education.

The economic downturn appears to have been weathered better in Australia. The 2010 election returned another Labor government. The government promised $5.2 billion in outlays during the next five to six years including ‘improved resourcing of the indirect costs of research’.

Since taking office, Labor has commissioned a number of studies of the university sector. In 2008, the Bradley Review underlined the urgent need for increased funding for Australia’s universities. The report concluded that ‘[f]or Australia to improve its relative performance against other nations, additional, ongoing and significant public investment in higher education will be required’. December 2008 saw the publication of the Australian House of Representatives Standing Committee Report into Research Training which again pointed to the need for government nurturing of the higher education research sector. The Report notes the ‘years of neglect’ of the sector and the ‘inadequate funding’ as being a ‘fundamental obstacle to building Australia’s full research capacity’.

In 2008 the Australian federal government announced that the Excellence in Research for Australia (ERA) initiative was to replace the previous government’s Research Quality Framework (RQF) program. In 2005 the UK government announced that the Higher Education Funding Council for England (HEFCE) would replace the Research Assessment Exercise (RAE) with the Research Excellence Framework (REF) – a more bibliometrics-oriented method of assessment, also designed to test economic and social impact.

The primary focus of the UK REF is to identify excellent research of all kinds, assessed through a process of expert review, and informed by robust research citation data. There is significant additional recognition given to researchers who build on excellent research to deliver demonstrable benefits to the economy, society, public policy, culture and quality of life. This endeavour is administered by four panels, each of which is divided into sub-panels. The Law sub-panel is linked into Panel C which places it firmly in the company of the social sciences disciplines as opposed to the humanities.

A strongly bibliometric approach which may be appropriate in scientific fields of endeavour is not entirely meaningful to lawyers. The use of metrics within the legal discipline is proving highly controversial. Of course, this is because there are no effective metric measures of citation for law. Quality of research within the discipline of law is normally evaluated not only by the citation of research papers by other researchers, but also by the referencing of pertinent research by the courts or law reform bodies. This is not the type of citation measure that is customary for other disciplines. This category of citation is not included in the most reputable research citation indexes which cover the discipline of law.

The Excellence in Research for Australia (ERA) initiative is administered by the Australian Research Council (ARC) and was developed by that body, in conjunction with the Department of Innovation, Industry, Science and Research, to assess research quality using a combination of metrics and expert review by committees comprising experienced, internationally-recognised experts. These evaluations, similar to the UK REF, are informed by four broad categories of indicators including research quality, research volume and activity, research application and indicators of recognition.

There is some ambivalence as to where law as a discipline ‘fits’ within the broader research community. ERA evaluates research within eight discipline clusters. The 2009 trial evaluated the Humanities and Creative Arts (HCA) cluster which contains Law and Legal Studies along with Built Environment and Design, Studies in Creative Arts and Writing, Language Communication and Culture, History and Archaeology, and Philosophy and Religious Studies. By contrast, Law was in a different social science grouping under the superseded Coalition government Research Quality Framework (RQF) scheme.

In this very competitive context, where discipline funding is based on measurable criteria and outcomes, and where interdisciplinary panels examine their work, it is apparent that academic lawyers need to be able to explain their research in terminology that demonstrates its credentials to those outside law’s community of practice.

Research published in the United Kingdom in 2004 demonstrates that relatively few projects by UK law school academics in ‘core law’ research areas were being externally funded. Michael Doherty and Patricia Leighton defined ‘core law’ as doctrinal or ‘black letter’ work. Their study noted that funded projects tended to be ‘undertaken by economists, social policy specialists, and those in inter-disciplinary research units that could, but typically do not, involve legal researchers.’

Australian universities have experienced major growth in Higher Degree by Research (HDR) completion rates for Law in the last two decades. Statistics show an increase from a PhD completion rate for Law and Legal Studies in Australia of six students in 1988 to 42 in 1998 (with approximately 20 Masters completions for both years of the study). The annual figure for 2008 had risen to 79 (together with an additional 16 Masters by Research completions).

Statistics for HDR enrolments in the field of law supplied by the Department of Education, Employment and Workplace Relations (DEEWR) provide a snapshot of the total numbers of students enrolled in HDR courses in Law and Legal Studies (090900-090999) at individual Australian universities each year during the period from 2004 to 2008.The total enrolments increased from 795 in 2004 to 982 in 2008.

The increasing numbers of students enrolled in higher degree research in law bodes well for the continued growth of research in the discipline, along with the development of a more sophisticated researcher profile.

A Higher Degree by Research (HDR) paper stands as evidence of the candidate’s research expertise. For this reason, the students, supervisors and examiners need to consider the research methodology that they are using.

A survey of postgraduate research in Australian law schools undertaken 10 years ago demonstrated that only 20 per cent of all doctoral research projects could be described as purely ‘doctrinal’. A more recent examination of HDR theses submitted to the Australasian Digital Thesis Program website in the five year period 2004-9, reveals that most of the legal theses had a doctrinal component, even though only a few students overtly identified the study they were conducting as being to any extent ‘doctrinal’. The examination of the database took place in October 2010 and covered a reading of 60 theses available digitally.

The analysis demonstrates that the doctrinal methodology is rarely discussed, even when a ‘methodologies’ chapter is included in the thesis. Methodologies’ chapters in the theses examined appear more frequently and are more prominent when the thesis involves a surveyor interviews. These methodologies ordinarily require ethics clearance from the university but even this crucial step in the research process is not always acknowledged overtly. An examination of the database demonstrates that only 16 of the 60 theses include a methodologies chapter (26.6 per cent), 21 discuss methodologies as part of another chapter, and one deals with the methodology in an appendix. Non-doctrinal methodologies are treated more expansively, with extensive descriptions and lengthy chapters. Where the thesis represents traditional legal research, significantly less, and sometimes no attention is given to explaining the methods used in conducting the research.

This small study of a selection of law theses demonstrates that lawyers are not conforming to the formalities of describing methodology in the same way that occurs in other disciplines. Perhaps there is not the same need to articulate the method for an audience from within the law paradigm. However, academic lawyers are now participating in broader interdisciplinary environments than they previously did, where there is little knowledge of doctrinal research processes and where there are different expectations in relation to explanations of research methodologies.

We need to distinguish ‘law’ as a practical discipline exercised within a professional setting, ‘law’ as a body of normative rules and principles (‘the law’) and ‘law’ as an academic discipline.

By the 1980s, law was well established as an academic discipline in Australia. The Pearce Committee reviewed the research coming out of the Australian law schools. It categorised the research as encompassing: (1) Doctrinal research – ‘Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explains areas of difficulty and, perhaps, predicts future developments’; (2) Reform-oriented research – ‘Research which intensively evaluates the adequacy of existing rules and which recommends changes to any rules found wanting’; and (3) Theoretical research – ‘Research which fosters a more complete understanding of the conceptual bases of legal principles and of the combined effects of a range of rules and procedures that touch on a particular area of activity.’

The 1982 landmark study on the state of legal research and scholarship in Canada, the Arthurs Report, included a fourth category covering non-doctrinal methodologies: (4) Fundamental research

– ‘Research designed to secure a deeper understanding of law as a social phenomenon, including research on the historical, philosophical, linguistic, economic, social or political implications of law.’

In some respects perhaps all that the Committee was saying is what the Nuffield Inquiry has been saying more recently – that we need much more empirical research about the law and its effects in society.

All the reports agreed that doctrinal legal research was the most accepted methodology in the discipline of law. The 2009 CALD (Council of Australian Law Deans) Standards refer to the necessity for students to be able to achieve research methodology skills akin to the ‘doctrinal’, including:

(a) the intellectual and practical skills needed to research and analyse the law from primary sources, and to apply the findings of such work to the solution of legal problems.

(b) the ability to communicate these findings, both orally and in writing.

There are obviously varying degrees of complexity within doctrinal legal research. Different forms of legal research necessitate variations in the method.

There is firstly the problem-based doctrinal research methodology used by practitioners and students. This approach is directed to solving a specific legal problem and normally includes the following steps: (1) Assembling relevant facts; (2) Identifying the legal issues; (3) Analysing the issues with a view to searching for the law; (4) Reading background material (including legal dictionaries, legal encyclopaedias, textbooks, law reform and policy papers, loose leaf services, journal articles); (5) Locating primary material (including legislation, delegated legislation and case law; (6) Synthesising all the issues in context; and (7) Coming to a tentative conclusion.

Even though the practitioner’s advice to the client, whether it is verbal or in writing, is invariably concise and pragmatic, it may nevertheless involve very complex aspects of the law. Therefore the practitioner lawyer often specialises in a particular legal area, and certainly would not need to slavishly follow research steps such as undertaking ‘background’ reading.

The core doctrinal methodology used by the practitioner is also used by the judge. However, the degree of complexity evidenced in a judge’s decision demonstrates another level of doctrinal work. The judge, in determining a case and handing down a decision between opposing parties in the court, is writing not only for the parties and their counsel, but also for a more general audience. The judge’s decision needs to be justified and fully explained.

Is this all that law academics too are doing when they research? Finding solutions to practical problems? The doctrinal methodology is not always predicated on a specific legal ‘problem’ or directed to locating one answer or conclusion. Academic researchers choose both the topic and the breadth and depth of investigation. The doctrinal method is similar to that being used by the practitioner or the judge, except that the academic researcher (or HDR student) is not constrained by the imperative to find a concrete answer for a client.

The researchers’ philosophical stance frequently determines the research questions, progress and possible outcomes of academic research. However, the ‘perspective’ or theoretical stance often lies unstated. Pauline Westerman argues that, within the dominant paradigm, ‘the legal system itself functions as a theoretical framework that selects facts and, highlights them as legally relevant ones’.

The process and the output of the doctrinal research is different among the various research and writing genres, though facets of the underlying research methodology is similar.

Doctrinal method is normally a two-part process, because it involves first locating the sources of the law and then interpreting and analysing the text. Most would argue that the law is rarely certain. However, if we take legislation as an example, the laws are passed by parliament and the words are written down. It is at the next step where the law or rule is interpreted and analysed within a specific context that the outcome becomes ‘contingent’ or conditional on the expertise, views and methods of the individual researcher.

Before analysing the law, the researcher must first locate it. Even a mere description of the scope of such an exercise makes the breadth of the undertaking more apparent to the ‘outsider’. Having located this wealth of documents, the second step is more nebulous. Is it actually possible to plan and describe this second aspect of the doctrinal research methodology in an intelligible way for an ‘outsider’?

Those studying the methodologies of lawyers point to a number of techniques used within the synthesising process once the documents are located and read. The application of such techniques, along with a description of, for example, the use of deductive logic, inductive reasoning and analogy where appropriate, would constitute the second part of the methodology.

Every research project, no matter what methodology is being used, needs a literature review as a precursor to further study – a nexus to that which has been done before.

The literature review is basically asking: What Testimony is available on your topic? ‘Testimony’ can include the secondary literature – texts, journal articles, government reports, policy documents, law reform documents and media reports. Just like any other research, doctrinal research requires background research of secondary commentary and sources as a first step.

Doctrinal research also requires a trained expert in legal doctrine to read and analyse the law – the primary sources: the legislation and case law. Doctrinal research is not simply the locating of secondary information. It includes that intricate step of ‘reading, analysing and linking’ the new information to the known body of law.

What kind of discipline is law and how should we categorise its main research method? There seems to be no accepted and stable classification preference for the law discipline within the research schemes.

Lawyers have attempted to set the doctrinal method apart and have said that what we do is ‘different’. Doctrinal method certainly distinguishes itself from ‘empirical’ or evidence-based methods. Empirical data comes about from ‘observing and/or measuring social phenomena’. There are aspects of ‘empirical’ or factual notions within doctrinal work, as legislation and judgments may be seen as social phenomena, but these are different because they are ‘legitimated’ by the sovereignty of the source (parliament or court) rather than because they are the ‘naturally occurring’, observable phenomena usually used in empirical work.

Some commentators, in discussing the issue of delineation of methodology, have sought to draw a distinction between the ‘internal method’ which is used in doctrinal legal research and which reflects the viewpoint of the participant in the legal system studying the texts of the law, and the ‘external method’ which reflects ‘the conceptual resources of extra-legal disciplines’ and involves studying the law in practice using empirical methodologies.

The majority of contemporary legal researchers acknowledge that it is important to build on doctrinal research conclusions by using sociological or other ‘outsider’ perspectives.

If we accept that the doctrinal method is a two-part process of locating ‘the law’ or doctrine and then analysing the texts, it might be argued that doctrinal research has aspects of both quantitative and qualitative methodologies within it. However, can the law (legislation and case law) be categorised as data?

Many aspects of the law are contingent on context, and need to be interpreted and analysed for meaning. Therefore the analytical, legal reasoning aspect of the process is necessarily a qualitative one. When a researcher undertakes doctrinal work, the outcome is totally dependent on the voice and experience of the individual.

As with any social science research, the doctrinal methodology is undertaken according to accepted discipline standards and rules. It requires an ability to achieve a high level of analysis and critique. However, this process is different from social scientific thought. Doctrinal research focuses on legal principle generated by the courts and the legislature. It differs from other social science research because it involves ‘[t]he search for the particular rather than the general’ and ‘the non-probabilistic nature of statements of law’.

Historical research is an example of a methodology that is in some way aligned to doctrinal research. Historical research involves developing an understanding of the past through the examination and interpretation of evidence. Evidence exists in the form of texts, physical remains of historic sites, recorded data, pictures, maps, artifacts, and so on. The historian’s job is to find evidence, analyze its content and bias, corroborate it with further evidence, and use that evidence to develop an interpretation of past events that holds some significance for the present. Historians use libraries to: locate primary sources (firsthand information such as diaries, letters, and original documents) for evidence; find secondary sources (historians’ interpretations and analyses of historical evidence); and verify factual material as inconsistencies arise.

Unlike historical research which seeks to find the truth through considering the perspective and view of every actor whatever their social status or role in events, and through examining the whole conceivable range of data, doctrinal research for the most part focuses on ‘privileged voices’. The legal researcher examines primary sources in order to draw logical conclusions about what the law is in those instances where it is not immediately self-evident from those sources. By contrast, the historical researcher examines primary sources as evidence of fact.

Content analysis has also been compared to doctrinal research. Content analysis identifies patterns in text and the themes in bodies of documents. Critical legal scholars use the technique to identify meaning behind the words of judicial and legislative text. It is a way of deconstructing text rather than reading and synthesising meaning from the text. It is, therefore, distinguished from most doctrinal analysis.

The conclusion from this study is that the doctrinal research methodology is a discrete method. However, it is not sufficiently delineated for the current research environment.

In the past, the under-description of the doctrinal method has not been problematic because the research has been directed ‘inwards’ to the legal community. However, in a modern interdisciplinary framework, where the research is being directed, read and more importantly ‘judged’ by those outside a narrow legally trained discipline, articulation of method is vital – especially if funding is tied to quality, and quality depends on methodological clarity.