LEGAL RESEARCH AND LAW REFORM

All research is the gathering of evidence or information for ascertaining an

assumption or verifying some hypothesis. Research is, therefore, an enquiry for the
verification of a fresh theory or for supplementing prevailing theories by new
knowledge.
Research in law is an important component of the process of law reform.
Moreover, it is an essential preliminary to all other components. The nature and
quality of research to be undertaken will, of course, depend on several factors. To
give a few instances, these factors include:
a. The character and status of the institution undertaking the project of law
reform;
b. The subject matter of the project;
c. The time allowed for completion of the project; and
d. Several other variables.
Research for the purpose of writing a book or preparing a thesis or an article
has no other objective except an exploration in depth of the position on the
particular topic of research. Its principal end is to arriving at certain conclusions
on the relevant aspects of the subject. Proposals for reform are, no doubt,
occasionally found at the end of the study paper, but they would not be the sole
objective of the research. When research is undertaken as a part of the process of
law reform, it is undertaken with a definite end, namely, making suggestions for
improvements in the law on concrete and easily identifiable matters and the
formulation of those proposals in precise terms.
Research is one essential tool for any project of law reform. The major portion
of legal research for the purpose of law reform is of three categories analytical,
historical and comparative.
Research on any topic can, in point of quantity, is limitless, as every researcher
knows, or at least comes to realize sooner or later sometimes to his cost. Money,
time and manpower set the limits.

In the era of information explosion, one of the most serious problems for doing
research is to find enough time to search and to digest voluminous materials. But
often the reverse is the case, and the researcher faces the more frustrating problem
of lack of sufficient information of research materials concerning legal
developments is certain countries or on certain topics.
Broadly speaking, almost all of the following processes would be found to be
necessary for each measure of law reform: 1. Analytical; i.e., finding out the existing
law, 2. Historical; i.e., finding out the previous law in order to understand the reason
behind the existing law and the course of its evolutions, 3. Comparative; i.e., finding
out what the law is in other countries and considering whether it can be drawn
upon, with or without modification, 4. Statistical; i.e., collection of statistics to show
the working of the existing law and 5. Critical; i.e., finding out the defects in the
existing law and suggesting reforms. The criticism is based upon (i) public
opinion, (ii) reports of previous committees or other bodies, (iii) practical
experience, (iv) judicial decisions, (v) academic literature, (vi) changed conditions
and scientific developments and (vii) need for harmonization with other laws
passed in the meantime.
ANALYTICAL RESEARCH
Analytical research is a convenient phrase which may be used to describe
the type of research that aims primarily at an exploration of what is the existing
law. For example, the rigid distribution of legislative powers between the centre
and the units did not exist before the Government of India Act, 1935. Although for
convenience, the devolution of business took place, the centre had unlimited
legislative power so far as the field of legislation went. Another apt example is the
central Act relating to easements. At present, there is in force a central Act on the
subject Indian Easements Act, 1882. Primarily, however, the Act relates to land
and rights over land, which (in the present scheme) is within the exclusive
legislative competence of the states.
In this respect, mention may also be made of the subject of Police.
Although the Police Act, 1861 a central Act is still in force (except in those states
where it has been replaced by provincial or state legislation), most of the matters

dealt with in the Act now fall within the legislative entries in the Constitution
relating to Police or Public order.

Statutory and other sources: With about thousand central Acts now in force, a
researcher would naturally search for a guide. However such guides are scarce. The
conscientious researcher will have to undertake his own research. Only experience
can lessen the chances of mistake.

Availability: Ascertainment of the statutory framework is thus an important part

of the preliminaries of legal research undertaken for the purpose of law reform.
Another preliminary that has to be undergone by the researcher in this connection
relates to the location and availability of the needed statutory material. The actual
availability of statutory material (assuming that it is identified) is also an
important practical matter. The problem does not present much difficulty in
capital cities, but could prove irksome in the mofussil. The aspect that creates
considerable anxiety is that of securing up to date copies of state Acts. Common
experience shows that it is a Herculean task to secure up to date copies of state
legislation.

Custom: It will be worthwhile to draw attention to another source of law

custom. Both in Hindu Law and Muslim Law, the overriding importance of
custom has been well recognized for about a century. In Hindu Law, customs
which are at variance with the Shastric law can still override the specific texts (in
the absence of a statutory provision), if they are valid customs. The Hindu
Marriage Act, 1955 for example, expressly preserves the validity of custom to a
limited extent.

Judicial gloss on statutes: Standard commentaries of distinguished or well

known authors can be used as a starting point, but the research cannot be
confined to them. At some stage, the researcher will necessarily have to go to the
digest for tracing cases that might have been missed in the commentaries.
Ultimately, he will, of course, have to reach the law reports themselves, whether
the case was traced from a commentary or from the digest. Even a good
commentary might not highlight a particular point under exploration.

Judgments of High Courts occasionally contain suggestions for, or hints at

reform of the law, and these suggestions or hints constitute a very valuable
material for the researcher.

Approaching case law: How is a judgment to be approached? It has been

observed that Every case lays down a rule, the rule of the case, [K.N. Llewellyn,
The Bramble Bush 66 (1960)]. But it is not always easy to discover the rule of the
cases. The eight elements of the case study brief have been thus stated:
(i) Heading, (ii) procedural history, (iii) assumed facts, (iv) assumed law, (v)
question presented; decision, (vi) reasoning, (vii) rule and (viii) comment
HISTORICAL RESEARCH
Analytical research deals with the present. But the past may also have to be
explored. On the Archives Building in Washington, there is a famous inscription
which reads: All thats past is prologue.
Historical research is useful in law where the present statutory provision or
rule of law has raised meaningful queries and it becomes necessary to explore the
circumstances in which the present position came about.
For this purpose, the researcher will have to consult relevant legislative
debates. Fortunately, so far as central Acts are concerned, they are excellently
preserved in the national archives and state archives in regard to the older Acts. A
visit to the second hand book-shops, or even correspondence with dealers who
deal with second-hand law books, is also worthwhile.
COMPARATIVE RESEARCH
The next type of research that can be conveniently discussed is comparative
research. Scholars have expressed different views as to the definition and scope of
comparative law. Professor H.C. Gutteridge affirms: Comparative law denotes a
method of study and research and not a distinct branch or department of the law.

Choice of countries: The practical problem that faces the researcher engaged in
law reform when he pursues this method is, what countries to choose for
comparative study, what books and other materials to consult and how much of
the materials collected to be used for the purpose of the project report. As regards

the countries to be chosen, until very recently, the tendency was to turn only to
the English law or at the most to some commonwealth jurisdictions, such as
Australia, Canada and New Zealand. To quote only one illustration of the actual
use of the comparative method in India, the report of the Law Commission of India
on the Indian Penal Code [Indian Penal Code (Forty-second Report, 1971)], draws
heavily on comparative material, which is not confined to the above mentioned
areas but also covers several continental countries, like American jurisdictions and
other areas

Choice of material: When using the method of comparison, the choice of material
for consultation has always been a matter presenting difficulty to researchers. One
could begin with a book on legal system of that country, and then proceed to an
exploration of the particular point with the help of the bibliography that might
have been given in that book.

U.N and allied agencies: During the last four decades, the United Nations
through its various agencies has brought out a number of publications relevant to
legal topics which are of great utility for a researcher engaged in a project of law
reform. Material on comparative law not easily available elsewhere is found
conveniently collected in these publications. In the field of commercial law, the
UNCITRAL has been particularly active.
STATISTICAL RESEARCH
This is a type of research in regard to which lawyers in India are not in a
very comfortable position. There are some persons who are, by nature and
temperament, shy of statistics. Anything in the discipline of advanced arithmetic
causes a slight discomfort to them.
When it comes to the presentation of information in the form of frightening
tables, lawyers are ill at ease. Generally speaking, the magnitude and nature of the
statistical information required to for law reform depends on the topic to which
the information is relatable. For example, when one is concerned with a fact of
judicial administration, one may need figures about the nature and volume of
judicial business, its rise and fall, the institution, pendency of the cases and
disposal of the cases and like. If one is concerned with the judicial behavior in its
particularity, for example, how far in particular states or areas the conviction rate

for particular offences is going up or coming down, one would need a more
specialized table. This type of research may have to be undertaken by someone
someday. Then if matrimonial law is the subject of reform, mere figures of
institution and disposal may not give correct picture of the success or failure or
matrimonial life. Matrimonial litigation in Courts represents only a segment of the
total picture of the married life of citizens. The troubles and travails, the happiness
and misery and the joys and sorrows of the family life are, in reality matters too
difficult to capture in statistics.

Internet: Nowadays, internet provides a good facility at least for locating the
source of certain materials of comparative value. It may not always provide the full
text but can at least furnish the researcher with a useful clue. Of course, such
further exploration may itself involve a lot of time, which aspect should be taken
into account when planning the time-table for the project.
CRITICAL RESEARCH AND NORMATIVE ASPECT
Where law reform is not the main objective, this stage may mark the
culmination of the activity of research, but not so in the case of research for law
reforms. Its purpose is not fully attained until the lines on which reform is needed
are indicated. One may call this normative research. This part of the work
involves not the mere evaluation of the material that has been gathered, but also
envisages the offering of concrete suggestions on the basis of such evaluation.
From where, then, is the material to be drawn for this purpose? This
question is often sought to be answered by saying that the needed material could
be drawn from academic writings and judicial observations. However, in actual
practice, both of these sources are found to yield only very limited assistance. The
researcher will have to fall back upon wisdom rather than on learning. It could be
the wisdom. Ultimately, it is only experience and maturity that make his wisdom
develop.

Ascertaining the points for reform: Assuming that analytical, historical,

comparative and statistical research have all been covered, the crucial question
that arises in a project of law reform is, wherefrom does one get fresh ideas? The
writings of theorists and particularly those of academic lawyers, come to the mind
in this respect. However, as a source of law reform, these can be of vastly differing

degrees of importance. At their best, they can be of the greatest assistance in

inspiring and formulating reforms; at their worst they may be positively dangerous
to listen to.
FORMULATION OF CONCLUSION AND LEGISLATIVE DRAFTING
There are at least two important aspects which come to the forefront when
this stage is reached. The first problem arises out of the possibility of a difference
of views among the members constituting the law reforms agency in question, this
has to be handled by tact. The second problem may arise because of the
complexity and difficulty of the issue involved, where it becomes difficult to
decide which of two or more conflicting approaches should be chosen and
incorporated in the report.
Assuming that, notwithstanding these problems, the law reform body has
been able to come to a conclusion (either unanimously or by a majority) as to the
recommendation to be made, the next question will arise as to the precise
legislative shape to be given to the recommendation. Most law reform agencies
follow the practice of suggesting the draft amendment. This requires the
assistance of a skilled legislative draftsman. Their number is scarce throughout the
world. Notwithstanding the emergence of institutional training programmes in
legislative draftsman, the supply does not meet the demand.
THE PRESENTATION OF RESEARCH
The first great principle of writing is clarity. This means, that there should
be economy of mental effort on the part of the reader. The writer must:
1. Himself understand what he is saying; and
2. Be able to express it in such a manner that he who runs may read.
There are several hints that can be offered, to help a writer in achieving clarity.
Principal amongst these are:
1.
2.
3.
4.
5.

Short sentences,
Short paragraphs,
A brief introduction to important passages,
A summary statement of points,
Adequate use of headings, and

BIBLIOGRAPHY
In the course of any legal research, one is necessarily concerned with
bibliography. This has two aspects preparation of a tentative bibliography in the
beginning and presentation of final bibliography at the end, the first has a practical
object in view, namely to enable the researcher to make an adequate start. The
second has an academic value. In a law reform project, the first aspect assumes
great importance.