In continuation to the eight part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran, Lex Witness brings to you the fifth part of the series which lays down special focus on the Independent Approach to Legal Research and related aspects. Follow this section for the subsequent parts of the series.
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 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 independent approach to legal research taken by a researcher in the discipline of law? What are its constituent elements, scope and application, and concerns?
Independent approach to legal research is the positioning, outlook, limitation, exclusivity, boundary and restriction given to the core framework of research as its indispensable aims and functions by researcher. In this, researcher is more concerned in doing research about basic ideals, principles, concepts, doctrines and ideas (variables). Researcher takes (claims) these variables as standalone values without connecting these variables to application and utility in real life situations. These standalone variables are treated as perfect values detached and isolated from reality, unconnected to social life in application when the research process is on. The reason (research motivation) for doing so is to study the significance of independence of values in remaining standalone without any dependence to outside forces of the field (society and State) where these values are seen applicable. Those values when studied must make intrinsic meaning to its own independent self, possessing its own identity, deriving its own character of bearing and innate sense of being. Through this, researcher gets the opportunity (research method) to delve deeply, explore internally, investigate inner dimensions and implore within, and carefully find out comprehensive values of ideals, principles, concepts, doctrines and ideas. For a moment or period of time, researcher closes the doors of social reality, goes intimate to dig inside the constructs of values to find its inherent quality and fundamental worth. Till this is done, research remains private and outside the concerns of social public. When everything about values is found at last in its base, bottom and core bedrock (research output), it brings out a knowledge which can become the best foundation for social application and utility in real life. A laborious process of research is completed here with a delivery of knowledge. This knowledge then is highly useful for State to adopt in policy towards practical implementation. In this, function of law and legal system in a State gets started. This independent approach to legal research which gives legal knowledge is more trustworthy as it has all the keys to open its understanding whenever required at every stage of implementation. It is like getting back to spirit to fuel the system outside. This knowledge gives State and legal system an opportunity of unfailing action in achieving promises for the welfare of society. Both State as well as law achieves this success through independent approach to research because of its complete understanding and enduring capacity of sustenance in time and space, in reality. Its excellence is in its ability to hold everything that can form outside as edifice and covering with spirit of light kept alive inside. This knowledge is like a thread that runs through fabric which holds its existence as well as utility. This deeper knowledge arising out of independent approach to research explains source, birth and cause of existence of any value. For example, a particular right as to the freedom of movement in any society necessarily implies ‘liberty’ as an ideal, principle, concept, doctrine and idea to be pursued in life, in society. Unless liberty as a thought is understood what it is inwardly(independently) with all its dimensions, it cannot be found and fit for application outwardly (socially). All kinds of doctrinal research, natural law principles and inductive reasoning that are taken in legal research are in fact three constituent elements of independent approach to legal research.
There are three basic elements that constitute what the author installs as independent approach to legal research. They are doctrinal elements, natural law leanings and inductive method of reasoning. When any research is carried on with these three elements, it shows that the researcher is carrying on with independent approach to legal research. These three elements show the maximum potential that legal research has towards State and society.
Doctrinal method in legal research has following broad features. It is a thorough exposition of rules of law researched and studied in conjunction with the values those particular legal rules have with ideal, principle, concept, doctrine and idea. Its research explains the relationship among all aspects of a particular value behind rules of law and shows where and how the gaps in understanding are to be filled in with thoughts establishing the ideal, principle, concept, doctrine and idea that law and State can make use of. This gives all the foresights and predictions as to how to go about while framing a law, deriving a policy and applying it for a legal action. It works for a complete understanding and foundation of values behind rules of law which society wants to benefit from. It theorises everything to show what are applicable to practices. The independent approach to doctrinal legal research and its utility to practice in life is like what a hull and gunnel are to a boat that gives buoyancy of floating and protection from sinking. When this legal knowledge is in practice, it is as good as a boat that moves in waters with both hull and gunnel which remain hidden yet basic for survival. Such are values of doctrinal legal research.
Legal research exploring natural law leanings is dependent on this independent approach. Natural law is what is fundamental, immanent, universal and indispensable. It is the legal imperativeness, invisible universality, essentiality, commonality and morality. Its self existence is a result of awareness out of pure reasoning and causative thinking. It is independent in its approach to legal research that is most suitable in the exposition of natural law rights as they can only be discovered and cannot be created artificially or structured synthetically. Independent approach to legal research in natural laws serves as best means for State to uphold peace and order, equality, justice and development as natural rights form part of evolutionary process of human behaviour, social acceptability and behavioural (legal) compliance. When society idealises something, it becomes natural that ideals lead to occupy real-life situations.
Inductive method of legal reasoning contributes immensely to independent approach to legal research. When broad generalizations are inferred from specific observations (inductive), it is useful in giving shape to a policy which State, law and legal system are interested in. Through inductive inference, research goes from specific to general consideration of ideas where law can aim to cater benefits to the maximum justifying social collectivity, its purpose and function. When all observations are made around a value that holds laws and rules, it results in understanding the wide pattern as a result of internal digging, inner implosion and withdrawing within the time and space of self-existing ideals, principles, concepts, doctrines and ideas (variables). This independent approach to legal research that paves way for generalizations brings out all possible explanations which when collectively presented becomes well laid theory out of inductive reasoning. When scientists who believe in objectivity and universality of application use this inductive method to form hypotheses and theories, what then can be said of the service, efficiency and utility for law as a discipline of creative arts out of humanities and social sciences? Law teachers must make immense use of this method.
Scope and application of independent approach to legal research is best when the three elements as shown in the aforementioned paragraphs, are properly constructed, tested and applied with an effective backing of State’s will and its organization of tripartite system of legislature, executive and judiciary. One of the best examples that can be given is the Universal Declaration of Human Rights (UDHR) adopted by the UNO. Seven principles of its Preamble (inherent dignity, freedom from fear and want, essential protection by law, promotion of friendly relations among States, faith in equal rights of men and women, universal respect for freedom and rights and finally common understanding towards realising these principles) contains natural rights which are declared for application and protection by every State in international community. These seven principles brought thirty rights and can be seen or shown as inductive and generalized patterns, proved doctrinally with substantial values of its own self existence as a result of natural rights or leanings of natural law based on awareness of pure reasoning and causative thinking. Thirty Articles of UDHR contain doctrinally packed explanations and inducted generalizations of natural rights borrowed from evolution of social collectivity and acceptance. It is visible in the thirty rights that UDHR offers such as; “free and equal in dignity and rights, absence of distinction of any kind, right to life, liberty and security, prohibition of slavery or servitude, inhuman and degrading treatment of torture or cruelty, recognition before law, equality before law, effective remedy through law, non-arbitrary arrest and detention, independent and impartial system for determination of rights, presumption of innocence, non-arbitrary interference with privacy and honour, freedom of movement, right of asylum from persecution, right of nationality, right to form family, freedom of thought, conscience and religion, opinion and expression, peaceful assembly and association, right to contribute and benefit from State, economic, social and cultural rights, right to work and protect its interests, right to rest and leisure, right to standard food, shelter, clothing and medicine and life, right to education, right to cultural and community life, right to social and international order, duties towards community and finally exclusion of destructive interpretation of these rights and freedoms” – are a fertile ground for independent approach to legal research. So also with the provision of the Indian Constitution where Preamble, Fundamental Rights, Fundamental Duties and Directive Principles of State Policy are revealed as rights and duties between the State and society that supports the will of the State. These provisions represent basic and founding ideals, principles, concepts, doctrines and ideas that act as variables of independent research in law to enhance the system of State and well-being of society. When researcher takes (claims) these variables as standalone values he or she goes very close to the truth, spirit and formulation of these values. Upon the proximity with essential legal knowledge through independent approach to law, State and society understand the complimentary mutuality between ideality and reality, principle and practice, concept and fact, doctrine and data, ideas and realism. It makes mutual relationship between State and society a fertile ground for conscious evolution of social needs that State must take into account to fulfil. These three elements namely doctrinal expositions, natural rights and inductive reasoning which form part of independent approach to legal research are a treasure island full of gold mines that any serious legal research if pursued with sincerity can make legal discipline achieve what no other discipline of knowledge can achieve. The uniqueness and super exceptionality that a discipline of law is naturally endowed with can be justified through these three elements in independent approach to legal research.
As this approach of research takes law as a discipline of knowledge to heights among all other disciplines of knowledge, it must also be guarded from its fall that comes as a result of over-eulogising its disciplinary relevance against other disciplines. Its encomium must be as judicious as a strong judiciary that is impartial in putting everything in place as per legal requirements. What are the concerns of independent approach to law that a researcher must keep in mind? First, legal doctrinalization should be clear and not vague. Clarity in doctrinal method means it delves deep into any value (that holds law), ‘must hit’ the bottom, catch the base and understand its foundation for effective application. It must reach the source, the home of spirit and not become a vagabond in the labyrinth of legalistic mumbo-jumbo of jarring ideas. Researcher must be careful in keeping the research bright and fresh and, not moody and gloomy with ideas disjointedly stuck over one another. Failing which, this luminous legal research of inward investigation can become a dark room for backward and negative analysis putting the society to degenerate in growth and development. Law and legal system will become unfaithful to society which it positively created for its own use if tight fisted doctrinalization detaches spirit from form, root from branch, soul from system. Second, natural rights must become a norm for practical implementation and not unliveable dreams. Not all natural rights are easily implementable given the state of Nature of the society which is unequal, non-free and unjust. Without getting into intellectual pedantry over man-made greed versus born-that-way theories over socioeconomic, political, cultural and religious chaos, society, State and law must persevere to reach near-perfection state of well-being for one and all. In this all natural rights must be kept as an ideal in all legal research without distrust as doubts are leech-ways for cutting the sap of life in social collectivity which grows from one stage of achievement to next stage of probable achievement. Three, inductive reasoning inferred from specific observation towards generalization should not become ill-defined to point out what is actual reality. It happens in inductive reasoning (a major criticism) that relationship between causal associations and matter of facts do not contain any reason between the two except induction. However, in legal research such a case of critical pronouncement does not hold waters all time. If multiple aspects of a particular cause or value (that holds law) is independently and inwardly researched as shown above, the interconnections and interrelations among multiple aspects of a cause can provide a clarity and pattern to the subject matter to result in sound policy before law-making. For example, recurring violations of rights of human beings across societies led United Nation Organizations to declare UDHR which explains basic ideals, principles, concepts, doctrines and ideas (variables) that society and community of States ought to follow. These values and variables (Preamble and thirty Articles) are standalone ideals to connect and bring meaning to life and society in this world. It must be kept in mind when doctrinalization, natural rights and inductive reasoning are pursued in legal research, law gives aspiration to the society that might go desperate at times when conflicts and disorder arise. Law is a positive, humanist and Statist psychology to lead society from nowhere to anywhere and even everywhere towards a stable future. Independent approach to legal research is like a boat that looks to sail all alone. But it connects two shores. One, human aspiration and other, social achievement.
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