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132 LEGAL RESEA RCH A ND M ETHO DO LOG Y

also be true that he may not be able to participate in the cut and thrust
of debate in the commission. Neverthele ss, the experiment is certain ly
worth trying. It should not be too difficult to secure the services of a lay
person with high intellectual attainments and with an ability to grasp
complex rules and principles, without that person being himsel f or
herself a lawyer.
To make the discussion concrete, it may be proper to give at least
one example of a field where consultat ion w ith the public is high ly
desirable. This is the field of family law. Take as an instance, the status
of illegitimate children, a subject on which changes in the law hav e
already begun and greater changes are needed.36 No doubt, the subject
has many legal and constitutional aspects a.nd it is u ltima tely for the legal
experts to prepare and present well-reasoned proposals as to what shape
the refo1111 should take. At the same time, lay participat ion in such
subjects strengthens the hands of the reformer, increases h is enthusias111
and general ly facilitates the work on. a matter basically concerned w ith
social policy.
So far as the Law Commission of India is concerned, it has, for
ascertaining informed opinion, been adopting one or more of the altemative
methods mentioned above as might be appropriate to the nature of the
subject matter of the project and other circumstances . For example,
while preparing reports on certain subjects, tentative proposals have
been issued by the Law Commi ssion, in regard to few other subjects,
detail ed questionnaires were sent out to interested persons and bod ies for
ascertaining their opinion. On matters o( a socially sensitive character.
oral discussions have also been held. Sometimes, more than one of these
alternatives may be combined, having regard to the nature, complex ity
and importance of the subject.
Questionna ire-Of part icu lar importa nce in l aw reform i s the
preparation and issue of the questionnaire.
Issue of a questionnaire usuall y involves the following steps :
(a) Select i on of t opics and su b-topics for i nc l u sion in t he
questionnaire
(b) Formulation of the actual questions on the topics etc. selected
as per as above
(c) Addition (under important questions) of suitable expla natory
notes in order to h ighl ight the significance of the quest ion
(d) Prepara tion of an appropri ate forward ing letter w hich has also
to fix a time limit of sending in the commen ts.
(e) Actual dispatch.

36. Sec Harr y 0. K rause, Illegitimacy : law and Social Po/ ic_v ( 1 97 I ).
L EGAi.RESEA RC H A N D LAW REf 'ORM 1 33

The process is to be u ndertaken carefully and in prepar ing the


questionnaire , it has to be remem bered that those who w i ll receive it
wou ld 11ot have the time or resou rces to go into detai ls. They w otild be
able to spare only , say , not 1nore than an hour for answer in g it. The
format of the questionnaire should, therefore, be so set, th at repl ies
cou ld be elic ited readily . This presupposes that there w i ll be no ambi gt1ity
in any of the questions and that the problems th at might hav e arise11 i11
tl1e m i11ds of those w ho sent t he questionn aire are prese11ted with
reasona bl e clarity .
By n1any persons, questionnaires are regarded as t he very first step
in a projec t for reform, to be taken at the beg inning of the project.
How ever, experience shows that a good and meaningft1l qt1estionna ire
post u lates familiarity w ith the contours of the topics concerned, thus
reql1iring some study and reflection . In th is sense, it is conve11ien t i f the
prepa ration and issue of a quest ionnai re, instead of precedi n g t he
comn1e11cement of the stud y , is rega rded as an i11ter111ediate step.
A questionna ire should not be too long or too short. Too l ong a
qu estionna ire leads to co11fusion and is likely to create increased work
when tl1e researcher comes to the stage of tabu lating the va rious repl ies
with reference to each sub-topic. Too short a questionnaire fail s to elicit
useful response, because, i f the issues are not spelt out by the queri st,
the responden ts w ill not take the trouble of doing so. In fact, t h is part
of the research work in law reform is a tax i ng an d laboriott s 011e and also
ti111e co11sun1ing.
Certa i n gu idel in es cou l d be u sefu l l y fol l owed in p repar in g
qltest i onnaires. The following are a few suggestions : (i) Prefer short
qt1estions to long ones and simpl e questions to complex ones (i i ) make
t l1e ql1estions as preci se as possible; ( i i i ) where the questions are
n t1m erou s, arra n ge them und er a few groups, wit h suitabl e grou p
hea di11gs; ( iv ) give n1argi na l headi ngs to each quest ion; a11d {v) above al l .
re111en1ber that the questionnaire should not be frighten in g in forn1 as it
is inten ded to elicit rea dy and warm respon se.
.
Tabulation of views-Where opinions have been inv ited 011 a particular
subject and repli es expressing such opinions are received forn1 v arious
person s, bodies and organisa tions, it becomes necessary to tabu late the
repl ies received with references to each query. Here the order in wh ich
tabL1lation is made beco1nes of importa nce. W here the subject n1atter of
the projec t is a statutory one on which a questionnaire has been issued,
the tabulation will natu rally have to be arranged in the order of the
quest ions. Where the subject n1atter of the project is non-st att1tory an d
no questionna ire has been issued as such, bt1t opin ions ha ve bee 11 i11v ited
ge11eral ly , the task of tabu lat i on becomes a bit difficu lt , si n ce, for
carry ing out the w ork in a met hod ical fashion, it w i l l be necessa ry to
1 34 LEGA L RESEAR( .'H A N D M ETl-/ ODOLOG r

improvise a list of topics and to arrange the points n1ade in the repl ies
in the order of the topics so improvised. Where the subject matter of t he
project is statutory, generally it is convenient to tabula te the repl ies in the
order of the selection of the statute. It is needl ess to say tha t where the
sections are lengthy, the tabu lation has to be sub-sectionw ise and not
merely sectionwise.
What exactly does ''tabulat ion'' mean? Bri efly it n1ay be described as
brea king up each reply into the points made therein and al locati11g tl1e
pointwise repl y to the question. topic or section to which it relates. so
that the person or persons who are to take a decision as to mer its wil l
hav e a picture of the opinions received in the law reform age11cy on each
poi nt. Tabulation means re-distribut ing the repl ies so that they are
arranged not personwise but pointwise. This makes it possibl e to read ,
at a stretch, all the shades of opinion on one part icu lar qu estion , topic
or section together, and thus to arrive at an assessment of the rel at i ve
qua l ity and quant ity of shades of views expressed on that particu lar
question. It is obvious that for this purpose reply by reply perusa l (that
is to say. perusing first the whole reply of one person or organ isation and
then the whole reply of another person or organisat ion and so on) woul d
be of no use. What is intended to be obtai ned is a picture of the opinions
topicwise, questionwise or sectionwise. For this reason, it is necessary
that the repl ies, when received are broken up, the poin tw ise views
expressed are noted down on separate page and a poi nt w ise sel f-
contained pictu re is presented by the researcher . This is, in short, the
process of tabulation .
Now. a few points of detail. In reducing repl ies to a suitabl e form
for the above purpose, it is usually necessary that the gist thereof be
sum marised rather than that the repl ies be quoted verbatim. Experience
shows that most replies, at least those sent by lawmen and even by some
lawyers, suffer from certain infinities. Either they are prol ix and repetitive
and there is scope for pruning or sometimes the reverse is the sitt1atio11,
name l y , the replies are too cryptic or are not very clear or sel t'contai11ed .
Here some editing would be needed.Thus, tabu lation invol vesconsiderable
intellectual labour. Incidentall y, it also involves some physical l abottr
when one is at the initial state of breaking up the repl ies poi nt-wise.
A scertaining the points for reform-Assu m ing that ana l ytical,
statistical, historical and comparative research have all been covered, the
crucial question that arises in a project of law refor 1n is, wherefron1 does
one get fresh ideas? The writings of theorists, and part ictt larly those of
academi c lawyers, come to the mind in this respect. However. as a
sou rce of law reform , these can be of vast ly di fferi ng degrees of
importance . At their best. they can be of the greatest assistance in
inspiring and formu lating reforms; at their worst, they may be posit ively
dangerous to listen to.
L EGA L RESEA RCH A N D I.A W REFORM 1 35

There are, no doubt, ill ustrat ions of the writ i ngs of law teachers as
a possible source of law reform at its best. At the same time, examples
of the worst variety of this species may, withou t di fficu l ty , be found
among contributions to legal journals which are sometin1es rather l1ast ily
pu t together. These represent a developmen t in the functi o11s of la w
teachers which has obtained quite a new degree of emphasi s in the last
decade or two. In i tsel f. it is to be wam1ly wel comed . for it is ind icat ive
of a new dynami sm in legal education whi ch was sadl y absent fron1 the
rat he r du l ler type of scholarsh ip which was once thou ght suffici ent for
the educa tion of the law student . But the rat race'' has invaded the
u niversit ies and what had its origin in a pra isewortl1y desire of a11
academic to do a decent job of legal research , coll atera l w ith the teach i n g
involved in his position; now occasionally involves hi m in a frant ic
necessity to ''pu bl ish, publish, and publ ish again '' even i f he has not h i ng
much to say , and even if what he has to say may not be part i cta larl y
sound. He is faced with the threat publish or perish.
In any case, academ ic wri ti ngs (as experience wou ld seen1to suggest)
contribute only a sn1all slice to the materi al to be gathered by tl1e
researcher for law reform. Such writi ngs may suggest some out l ines ot
reform, and that too, in a few areas only. But tl1e major l abour l1as to be
done in the law reform agency itsel f.

Formula tion of conclusions and legislative dra ft ing

The formu lation of conclusions on various issues i11 any project of


la w refom1 is not so easy as is sometimes u nderstood. There are at l east
two important aspects which come to the forefront when this stage is
reached. The first problem arises out of the possi bi lity of a di fference of
views among the mem bers constitu ting the law reform agency in q uest ion.
This has to be hand led by tact . The second problem may arise beca u se
of the complexity and difficulty of the issue invol ved, wl1ere it becon1es
difficult to decide which of two or more conflicting approaches should
be chosen and incorpora ted in the report. Assuming that, notw ith stand ing
these problems, the law reform bod y has been ab le to con1e to a
conclusion (either unani mousl y or by a majority) as to the recom menda tion
to be made, the next quest ion wi l l ari se as to the precise legislative shape
to be given to the recommenda tion. Most law refor1n agencies follow the
practice of suggesting the draft amendmen t . This requires the assistance
of a skilled legislative draftsman . The ir number is scarce t hrou ghotat t he
wor l d. N otw i thstand ing the emergenc e of i11st i t u t i ona l t ra i n i n g
progra mmes in legislative dra ftsman, the supply does not meet t he
den1and.
Neverthe less, a law reform agency must, of necessity , have avai lable
to it expert assistance in legislative drafting. Draftin g can be "learn t''
136 LEGAL RESEARCH AND M ETHODOLOG Y

only by practice. But training sessions of, say two weeks or so, n1ay
help. There are also some books available on the subject.37

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''.38
The writer must :
(a) himself understand what he is saying; and
(b) 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 -
(a) short sentences;
(b) short paragraphs;
(c) a brief introduction to important passages;
(d) a summary statement of poin ts;
(e) adequate use of headings; and
(f) express enunciation of propositions which, to the wri ter, may
seem ''obvious'', but which are not so obvious to the reader.

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 offinal 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 val ue.
In a law refor111 project, the first aspect assumes great importa nce.
A bibliography cannot be ''fossilised''. It grows and grows, in the
course of the project. The main sources (in a project of law reforr11)
consist of -
(a) statutory material
(b) decisional material
(c) academic material
But, in each of these principal divisi ons there are sub-divisions, such as.
historical, analytical, comparative and critical. For example, take statutory

37. A .H . Angelo, Thc M auriti us Law Revision Un it-An Answer to Some


0

Leg islative Drafting Problems", 25 Int . Comp . l.Q. 894 ( I 976); see, also P .M . Baksh i ,
Introd uction to legislat ive Drafting (1996).
38. Rick ard, Technical writing 77 ( 1931 ), quoted in H . Weihofen, Legal W r it i ng
Style 4 ( t 961 ).
LEGA L RES EA RCH A ND LA W REFORM 1 37

materials. Here, one may be required to trace the history, ascertain the
existing provision, identify the comparative statutes elesewhere and also
trace criticisms, both of Indian and comparable foreign statutes.
Theoreticall y , the process could be endless. But a practical project
of law reform has limitations of time, manpower and money . Hence,
some restraints have to be imposed on the tendency to read as much as
possible and to devour as much as one can.

Rewa rds of research

Research (apart form its material rewards) offers higher rewards-


intellectual and spiritual . The belief must be communica ted to the
researcher, that, in the words of Mr. Justice Holmes ''(A ] man may live
greatly in the law as well as elsewhere, that there, as wel l as elsewhere,
his though t may find its unity in an infini te perspect ive; that there, as
well as elsewhere, he may wreck himsel f upon life, may drink the bitter
cup of heroism, may wear his heart out after the unattainable''.39
Again it is research that brings to us the awareness that the law is
a flowing river, never standing still though it may have the outward
appearance of a placid lake. As Wigmore has pointed out : ''To any
student, it is an important intellectual stage when he first realises that all
law is in a state of constant motion like kaleidoscope - do not remember
when this realisation came to me. I know it was not while in the law
school; bu t as I look back, I note a great difference in 'all my opi n ions
about law since the time of that realisation '.''40

39. Quoted by Sol M. Li now itz, "Our Changing Society : The Lawyer 's Challenge",
54 ABA J . 445, 450 ( 1968).
40. John H . Wigmore, "Nova Met hodus Discendae Decend aeq ue Jurisprud en1iae''.
XXX H arv l Rev. 812 at 823 ( 1 91 7).
LEGAL RESEA RCH A ND LAW REFORM 13 I

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 jud icial observations .
H owever, 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. U ltima tely , it
is only experience and maturit y that make his wisdom develop.
Public opinion-A question that arises in connection w ith public
opinion is the modality by which it is to be ascertained.
Another equally important question concerns the proper part to be
played by public opinion in the fonnulation of law and legislation. The
second question, of course, has a relevance transcending the process of
law refor111, and is significant for the entire legal system and its functioning.
Apart form the outstanding work of A.V. Dicey and the more recent
publication edited by Morris3 1 Ginsberg, 32 there have been specialised
studies concerning opinion and legal change in certain aspects.33 Much
has also been written on law and morality and the role of public opin ion
in the formul ation of rules having a moral content. However, coming
specia lly to the first question, it can be stated that there have been more
than one method of ascertaining public opinion in the process of law
refo1111. There is, in the first place, the method followed by many law
commissions of issuing working papers.34 Then, there is the alternat ive
of issuing a questionnaire (this will be dealt w ith in some detail later).
Where the subject is a short one or one on which specific proposals or
queries may be difficult to formul ate, the law refo11n bod y might have
to satisfy itself, at least initially, with merely issuing a press communiq ue
inviting opini ons and comments. More elaborate methods can be resorted
to at a later stage. Where, on the other hand, the subject is one that
requires detailed consultation and personal exchange of views, a better
alternat ive is the hold ing of oral discussions.
Finally, there is the more interesting question of direct participation
by laymen in the process of law reform.35 There m ight be a case for
including lay persons-a suggestion that has often been made by lawyers
as well as by laymen. It may be that a lay commissioner may not be able
to represent the infini te variety of lay interests in the refor1n, and it may

31 . lectures on Relation Betwee11 law and Opinion in England During the Nineteenth
Century ( 1905).
32. law and Opinion in Engla nd in the 20th Century {1959).
33. See, e.g., Ych ezk el Dror, ..Law and Social Ch ang '', XXX I/ / Tu/. /. Rev . 787 at
789, 794, 801 ( 1 958-1959).
34. . See for the practice in the English Law
Commission, Joh n H . Farrar, lau 1

Refornr and the law Con1n1ission 33, 34, 71 ( 1974).


35. Geoffrey Sa,vcr, "The Lega l Theory of Law Reform", 30 Univ. of Toronto law
J ournal 183, 1 94 ( 1970).