Summary LME3701 Legal Research Methodology

SECTION A LEGAL RESEARCH: GENERAL THEMES Section A of the study guide contains a general discussion of legal research and is intended to provide you with a general overview of themes which you will apply practically in section B. The learning outcomes for this module are dependent on the implementation of practical skill and thus the learning outcomes are indicated in section B of the study guide. We wish to point out that selected content in this study guide relies on the work of various authors cited in the footnotes. It further relies on the work of various academics at the College of Law at Unisa. In this regard, we specifically acknowledge Prof I Kroeze, Prof OS Sibanda, Prof A Smith, Prof F Abioye, Mrs S Smith, Prof M Schoeman and Prof MG Karels. We further acknowledge other Unisa colleagues who may have contributed to these writings but who have inadvertently not been cited as such. We do not cite Unisa College of Law staff specifically in footnotes but rather acknowledge their contributions here. LEARNING OUTCOMES Once you have studied section A, you should be able to solve problems related to a practical set of facts on any of the following matters or to discuss any of the following concepts: • identify the nature, scope and content of legal research • explain the concept of research from a practical perspective • explain the importance of research • identify and apply different types of knowledge • identify the defining characteristics of evidence-based knowledge • identify the major research designs and methods used in legal research and enumerate their practical implications • clarify terminology that is typical of research proposals in law and identify its generic meanings 1.1 INTRODUCTION TO LEGAL RESEARCH The saying “knowledge is power” 2 is one you will have heard frequently in your life. Have you ever stopped to consider the meaning of the word “knowledge”? Knowledge, in the context of research, is not simply an accumulated mass of facts and figures but should rather be thought of as a database which you can access to solve problems in everyday life. In the case of legal practitioners and academic writers, their knowledge database is frequently full of legal knowledge that is used, for example, to solve a legal problem for a client or present an opinion on a specific legal matter.3 The wealth of knowledge is established during undergraduate study when lecturers lead you in 2 “Knowledge is power” is generally thought to derive from the Latin expression “ipsa scientia potestas est” which ap- pears in Sir Francis Bacon’s Meditationes Sacrae (1597). In its modern form, the expression has been used in various writings and its exact origin cannot be confirmed. 3 Learning guide Rhodes University (Rhodes University 2014) 6. 2 SECTION A: LEGAL RESEARCH: GENERAL THEMES building a knowledge base in various areas/fields of law. You may, for example, have the foundational knowledge of the law of evidence or labour law within your legal database and are thus equipped to use that existing knowledge to answer questions and appear in court on behalf of a client. But knowledge is not static. It changes and develops into new knowledge. The question is then where does new knowledge come from? In the case of law, there are various answers. One that comes to mind immediately is judicial interpretation through case law. The courts analyse and develop the law as it stands in order to produce new theories or doctrines applicable to legal problems. The courts also use precedents which are cases decided in the past. Another source of knowledge generation is legislation. Legislative drafters use new legislation to fill gaps in the law or to create new law for specific purposes relevant to society. A third avenue for the creation of new knowledge is academic research. As a law student, you have already received the basic principles of law in various subject fields and perhaps have used research skills in research assignments during your previous years of study. These form the basic tools that will enable you to enter the workforce. However, this is not the end of your legal training and you will require advanced research skills to contribute to the creation of new knowledge in order to, for example, assist clients, research legal problems or interpret and develop law from the bench. Further, some of you may wish to pursue postgraduate degrees and perhaps enter academia, which is where academic legal research becomes particularly relevant. Research is a lifelong learning process that will enable you to evaluate existing knowledge, criticise knowledge, expand knowledge, and eventually contribute to the development of knowledge. The ability to create and, in some cases, manipulate knowledge makes you a valuable asset to employers because it demonstrates higher- level thinking and ingenuity. The purpose of guiding you through the research process is to equip you with the skills and aptitudes necessary for creating knowledge independently. In this process, you will learn that there are different forms of knowledge, and that not all of them will assist you in completing research. Among the types of knowledge are for example:4 i. Itemised knowledge. This is the kind of knowledge often called general knowledge. It is factual. For example, is the death penalty a form of sentencing in South Africa? The answer is obviously no. This form of knowledge is useful but does not tell you much more than there is no death penalty in South Africa. Of course, if you were asked to research the historical significance of the death penalty in South African criminal procedure, the fact that it is now not used is relevant and can be linked to a variety of other facts to demonstrate your point, but it is still factual or explicit knowledge. The itemised knowledge claim would then require research in order to be extended to become evidence- based knowledge. ii. Opinion-based knowledge. This is a kind of knowledge based on the thoughts and interpretations of people. For example, if we took a survey and asked “should the death penalty be allowed in South Africa?” we would receive a variety of responses from people based on their personal experiences and thought processes. This does not, however, constitute knowledge, merely opinion. Often if opinion is questioned, it does not have any basis other than subjective thoughts and emotions. It is, in other words, not evidence-based 4 Learning guide Rhodes University 9 discusses these concepts in greater detail. LME3701/1 3 SECTION A: Legal research: general themes knowledge. Note, however, that this type of knowledge can contribute to statistical research where a researcher tries, for example, to establish what percentage of a particular population does or does not sanction the death penalty as a form of sentencing. iii. Evidence-based knowledge. This is what we try to teach you to produce through the research process. Evidence-based knowledge stands the test of cross- examination and counter argument and is supported by authority. 5 The facts you learnt during your studies thus far are the tools which will allow you to produce this type of knowledge. Legal research allows you to expand/analyse and criticise knowledge and then to suggest new interpretations or applications of legal knowledge. Evidence-based knowledge requires you to substantiate everything you claim to be true or correct; thus an academic statement without authority (evidence) is of no consequence. Evidence-based knowledge has certain defining characteristics: – Evidence-based knowledge is aimed at filling a gap in existing knowledge. It is not knowledge for the sake of it but rather knowledge that aims at curing a defect or developing an existing knowledge schema or suggesting a new form of knowledge or procedure. – It takes its lead from existing knowledge in the field. Existing knowledge usually consists of theories or principles that are used to solve particular problems. This is the basic knowledge of a particular legal field. If your research interest is, for example, plea bargaining in the criminal process, you would not be able to produce new knowledge if you did not know the content of the specific legal instrument (section 105A of the Criminal Procedure Act 51 of 1977), which would form the basis of your research interest at the very least. Existing knowledge includes the work of authors who argue for or against specific points or areas of law. Court judgments also form part of the existing knowledge base for legal research. – Evidence-based knowledge is incremental. It builds on existing theories and knowledge. The existing theories and knowledge are analysed and/or criticised by role players through research. If you do not know who the main theorists and role-players are within your field of research, you lack the basic literature for building knowledge in that field. Thus, it is important that a theoretical framework forms part of your research. Think of existing literature as a debate in which all those interested in a specific field of research have a conversation on a particular point of law. 6 They do not always agree with one another and may use various tactics to convince each other of a particular point. These arguments occur among all knowledge generators – from the most inexperienced researcher up to subject specialists and senior legal practitioners. During this process, knowledge-generators both engage with existing knowledge and build theories for new knowledge. These people build legal literature for the production of new knowledge. All knowledge-generators – from the inexperienced to the most senior – have a contribution to make. The only requirement attached to adding knowledge is that the analysis, criticism or interrogation is attached to a knowledge claim substantiated by reference to authority (in other words, it demonstrates evidence supporting its point). – Knowledge claims are central to evidence-based knowledge. A knowledge claim is a statement about a certain topic or aspect of law that is substantiated by 5 Learning guide Rhodes University 9. 6 Learning guide Rhodes University 13 discusses these concepts in greater detail. 4 SECTION A: LEGAL RESEARCH: GENERAL THEMES reference to authority. The knowledge claim is thus evidence based. A central knowledge claim is usually comprised of a series of smaller knowledge claims that holistically build an argument on an aspect of law. Evidence in the legal field usually takes the form of existing, proven, reliable knowledge and hence our advice not to simply accept a source without examining it for authenticity and reliability. You will not always agree with the evidence that already exists. However, as you develop into a sophisticated researcher, you will challenge existing evidence by making evidence-based knowledge claims of your own. Your knowledge claims are then deposited into the knowledge database for others to use as evidence and to concur with or dispute using their own evidence-based knowledge claims or theories. – Evidence-based knowledge and the process of analysis, criticism, debate and so forth is how new knowledge is generated in specific legal fields. LME3701 is designed to introduce you to various concepts originating from the field of legal research. These themes are discussed in general in the remainder of section A of this guide and thereafter selected aspects are practically applied in section B where we discuss the requirements of a research proposal at the Unisa College of Law. Our point of departure is defining the nature, scope and content of legal research. 1.2 CLASSIFYING LEGAL RESEARCH 1.2.1 Defining legal research Legal research is the process of finding an answer to a legal question...