In continuation to the eight-part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran, Lex Witness brings to you the seventh part of the series which lays down special focus on the Equilibrial Approach to Legal Research and related aspects. Follow this section for the final part of the series next month on Integral Approach to Legal Research.
Like any research, legal research has two elements. One, original contribution to legal knowledge and, two, systematic research methods which bring out that legal knowledge. Systematic research methods (problem-literature-hypothesis-question method- kind-data analysis-conclusion and suggestion) are ‘mere inputs and processes’ which must result in giving ‘valuable outputs and products of knowledge’. What is between a means to an end is what research to a knowledge is. In simple terms it is akin to a delectable food on plate (output-knowledge) made out of vegetables, cereals, pulses, fruits and cooking materials (input-research). Research process is a format, layout and scheme that discloses essence, spirit and expression of knowledge. All research must lead to ‘new awareness’ or ‘new analysis’ or ‘new assistance’ to the existing knowledge. Till this ‘new-ness’ of knowledge arrives, research is only a dry, laborious and elementary compilation of concepts, ideas, facts and units which researcher investigates arduously with a hope of developing his or her new contribution to already prevailing knowledge. Copyrights and other rights of intellectual property emerge from this ‘new-ness’ of knowledge which research legally claims. In yet another angle of explanation, when a sound legal research is done, we extract ‘information’ first, in order to make ‘interrelation’ next resulting in ‘inference’. This ‘inference’ culminates in ‘identification’ of actual or original ‘intention’ of law which then shows ways for ‘implementation’ of what, when, where, which and how law wants to fulfil its aims and functions. This is the innovation a researcher is interested in. These five ‘I’s (‘legal’ information-interrelation-inference identification- implementation) forms broader understanding of legal research. At this juncture, what is meant by equilibrial approach to legal research taken by a researcher in the discipline of law? What are its constituent elements, scope and application, and concerns?
Equilibrial approach to legal research is multi-position, balance, harmony and order in relationships given to the core framework of research as its indispensable aims and functions by researcher. In this, researcher is more concerned in doing research to understand how to arrive at a balance from all that have been produced by independent and interdependent research whose dimensions we explored in the previous two columns. Both independent and interdependent method of approaches to legal research cannot reconcile in their viewpoints when they are put together by equilibiral researcher whose aim is to merge benefits of both as well as cancel limitations of both the methods. This research holds a higher denomination and purpose as it does not want to waste the efforts put by the researchers from both the camps of the previous methods. If an analogy from common life can be drawn; equilibiral research is like how a parent of a family or head of an organization decides what needs to be done to advance the interests of children in a family or employees of an organization, collectively. A parent of a family or head of an organization thinks of all the members who as variables have acted either independently or interdependently and put their energies to achieve what is to be achieved. And these achievements that have come from independent and interdependent methods have to be reconciled together if equilibrial researcher wants to achieve greater good and higher purpose where by reconciliatory congruence shares benefits produced by everyone to all collectively and works out to remove the limitations posed by the respective research approaches which restricts the application of benefits from everyone to the collectivity. Thus, equilibiral research augments widely the nature and scope of research, percolates deeply all the benefits of research to everyone including members from both the camps, and addresses the criticisms that have come as a result of lop-sided methodologies adopted by researchers based on one aim or some sets of aims as per their research requirements. This practically leads to explain equilibiral research in three elements that define what this synergetic enquiry is all about. They are, first, internal constructs and external contents, second, unilateral discovery and multilateral unearthing, third, dependency on methodology and difficulty of interpretation.
What is an internal construct and external content in law and how is legal research methodology to look into these two? Every research has these angles and every researcher knows these aspects. However, they may not be done consciously when legal research and its methodology while they are being pursued, as research may concentrate either in independent approach or interdependent approach, which equilibrial approach now brings together. An internal construct in law is the consistency or coherency of all the legal norms and their interpretative understanding inside provisions of law or a Statute, Act etc. This expectation is basic, as achievement of the aims of law, or provisions of law depends on the steadiness of understanding, evenness of thoughts or constancy of views in relation to a legal ideal that are present inside internally as a construct of legal value. For example, when a law is made to regulate a set of variables in a given situation, it has to be consistent, constant and coherent in the steadiness of understanding, evenness of thoughts or reliability of views with basic legal norms, values or ideals such as the clauses of equality and liberty. Can any law be made and put into force when these two clauses are absent? It is as good as defying gravity in order to levitate and fly aloft outside reality. These legal norms, values or ideals cannot be separated, misinterpreted or left inconsistent and incoherent in meaning among flow of words and phrases while making a law through legislative phrases and sentences. It is not only a manner and method of legal language in construction, but also a cumulative legal understanding concurrent with the legal ideal and norms that reflect as objectives and purposes of a particular law, Statute or Act. This internal construct also in turn leads to proper understanding of the nature and scope of the law or legal provision made which are to be put into action. An external content of law follows its internal construct through legal institutions, machineries, organizations, apparatuses and establishments that are collectively called legal systems that bring the operation and implementation of internal legal constructs. When law is made by the society for their own benefits, it is presumed that it ought to act through these forms of legal systems in the way it is conceived for implementation. External contents give scope for testing the values which internal constructs adopt. One can say, external contents are law in action whereas internal constructs are law in value. When relationship between the two are studied independently as well as interpedently, it brings equilibrial research in action.
Research of equilibrial method brings together both aspects of unilateral discovery as well as multilateral unearthing. How? When researcher carries out an investigation from a set of questions from one legal sphere and connects them to different sphere of knowledge from other discipline, it is unilateral discovery. For example, research that deals with a penal provision of rape of women in a given time-space context which allows the inclusion of data analysis from other sphere of knowledge. In this context it is penal provision of rape that accepts data analysis on the age of women, time of occurrence, culture of gender discrimination, socialization and normalcy of relationships in relation to study of rape as a crime, its victim, cause, compensation and eradication. In the same context, when research involves two or more experts from different disciplines of knowledge come together in solving the problem, it becomes multilateral unearthing. In this context of rape, it is either sociology or culture studies or psychology or two or more of these solving issues of rape, its crime, victim, cause, compensation and eradication. From this, legal research may proceed with or ought to start either independently or interdependently or as is the case of equilibrial research, it simultaneously deals with from either sides. Such research is, no doubt lengthy, time-consuming and complex but nevertheless, it solves the problems that law confronts. Especially problems of society that are intricate and thorny, mixed and tangled by knots of multi-layered realities of uneven socio political- cultural-religious, psychological-economic life of modern world where tension between everlasting ideals and fast-paced materialism has disturbed justice and equality, liberty and fraternity of both individual and collective life. Just equilibrium and orderly legal balance have gone missing resulting in opportunistic exploitation to the detriment of everyone’s peace and development. Equilibiral research addresses these issues and takes upon it not only as a methodology to solve but also to interpret how it is to be solved.
Researchers from both independent as well as interdependent legal spheres often depend on data from outside the realm of law. This presents a unique problem to legal research as a whole. When legal research takes some data from other disciplines, does the methodology of collecting and analysing the data of the respective field affect the outcome of law, its aim and objective of legal research? Does law and its legal systems depend on their methodology of how they arrived at data, analysed it and presented it? Because other fields of knowledge while acquiring the data, analysing and presenting them need not have an aim to support law and its legal research, though in an ideal condition such an all-embracing method is most favourable. However, that ideal condition may not be a case at all times. Hence, the data collected, analysed and presented might have different set of aims that are to be transposed as data for legal assimilation, adjustment, accommodation and adaption within legal internal constructs and external contents. A legal question ought to be supplied for survey of data in field by non-law experts that understand and work in tune with the goals of legal research without circumventing its methodologies that are crucial to the understanding of core legal values. As seen in the previous two columns such as independent and interdependent legal research, the limitations that come are a result of monistic attitude in pursuing either of the forms of research. Equilibiral research comes as a rescue to liberate social variables from the imprisoning restrictions of lop-sided research attitudes towards legal values that become transcendent and immanent in benefits to one and all without any damage. When legal questions are understood in the non-legal spheres of knowledge along with their data, legal interpretation becomes easy, justiciable and goal-serving, which only equilibiral research attends to.
Let us take few contemporary problems that law and its legal research are grabbling to solve. This can show where equilibrial legal research stands for. Take the case of Genetically Modified (GM) crops. What are the advantages of GM crops? Disease and insect-resistance, greater production and increase in nutritional value of crops, decrease in use of pesticides and increase of farm income, decrease in food prices, deforestation, global warming, food security and sustainability etc. A counter or opposition research goes to the extent in giving the disadvantages of GM crops such as allergy to human life, environment nonfriendly, decreased bio-diversity, disturbance to gene-flow and all other issues of side-effects to nature as well as human life. At this juncture, equilibiral research brings all of its three elements – ‘internal constructs and external contents’, ‘unilateral discovery and multilateral unearthing’ and ‘dependency of methodology and difficulty of interpretation’ in place to understand the problem of law as well as society at present on this GM issue. Some of the questions that can be put to both the sides where advantages and disadvantages of GM crops are viewed; what is meant by risk to human life and nature? How does a scientific understanding of plant kingdom understand the element of risk? What are legal connections between plants and society, food and prices, human nature and biodiversity? From where are we to take the knowledge, when both sides argue for their own set of knowledge, beliefs and benefits to be supreme? Let us analyse one question common to all. It has been argued that GM does not yet fully stand the scrutiny of legal aspect of precautionary principle which is a bedrock value of the juris corpus of all kinds of environmental laws. Precaution is a prudence, awareness, foresight or forethought in which knowledge or understanding is an element for ‘a priori’. This knowledge or understanding ought to be a legal knowledge and legal understanding (a legal ‘a priori’) as law is the only central figure that reconciles conflicts and contradictions because of its very essence of nature – ‘regulation of order’, in social life where economic, scientific, psychological, religious or political rights are allowed to assist the central legal axis of order and movement. When the legal elements of internal construct are consistent and coherent, external contents of legal systems and institutions are ready and receptive, unilateral discovery and multilateral unearthing are done from either sides, and finally dependency of methodology and difficulty of interpretation are assisted by samples of questionnaires that connect legal thinking to make legal values and legal ideas meaningful, it brings equilibrial research to bring miraculous results not only for society as a whole, but also to give direction to other streams of knowledge like psychology, culture, science, economics and technology in order to assist law and its legal knowledge. This legal knowledge and legal understanding out of the three elements of equilibrial approach to legal research is the legal ‘a priori’ that defines what prudence is all about for every branch of knowledge.
There are two major concerns of equilibrial approach that are to be addressed. It is indispensable to solve these as the benefits of this kind of research have far-reaching consequences. Firstly, how to incorporate non-legal empirical data into a legal context? How to make these data-sets acquired, assessed and assimilated by experts of non-legal streams of knowledge understand legal requirements shaped by legal ideals, values and norms as accepted, legislated and made justiciable by the society? Secondly, how to translate, convert or alter pure legal constructs of legal values, ideas and norms into non-legal equivalents both for doctrinal as well as empirical purposes of research. How can this be done? It is a question that is not yet answered under legal epistemology. In order to explain this in nutshell in the context of GM crops, some questions that can be presented for research-community are as follows. Does law through its legal logic and reasoning hold nature and biodiversity only as a subordinate supplement to human nature and life? Does legal knowledge hold the whole of environment only as an outside or inferior agency to serve human life and not be a part of it? Is not ultimate or transcendent justice applicable to all forms of life and beings (plant, animal kingdom, etc.), and not just to human beings alone? Do all other forms of life (recognised and not yet recognised) not deserve justice? Answering these questions will be a major breakthrough in law. These concerns of equilibrial research are not yet answered except seen through a tug of war between two camps of research and knowledge. And, they also cannot be left un-researched leaving society, human life and Mother Nature battle among each other. Where is the answer then? Integral dimensions of law that form part of the last of this eight-part series (Nature of Legal Discipline) brings the answer in the next column, next month.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
