Every legal professional, whether in undergraduate or postgraduate studies, hears about legal research methodology.
Methodology means the study of the path taken in the pursuit of science and knowledge. It arises in the service of scientific research.
We can also say that all types of research, including legal research, require a scientific method. In this sense, the method is the path itself, which connects the starting point (beginning of the research) to the point of arrival (state of knowledge about the researched subject).
It is in this process between the beginning of the research and the state of knowledge that reflection on the researched topic occurs, that is, the handling of understanding and the construction of knowledge.
Scientific knowledge, unlike common sense, allows for the verification of results. Here, the reasoning and techniques can be clearly identified. If another researcher follows exactly the same path, with precision, they can verify the results achieved in the previous study.
When we refer to legal research, some questions come to mind: what are the basic steps that should be followed for the investigation to achieve its objectives in a scientific way? How does the methodology of legal research work?
Let’s go!
First of all, the main academic works
In legal, and in most fields of knowledge, we produce monographs, dissertations, and theses. Monographs are presented at the end of undergraduate and postgraduate specialization courses. One of the characteristics of monographs is the systematic, but not exhaustive, organization of knowledge. It is a study that recapitulates a topic, primarily reviewing the literature.
Dissertations are submitted as a partial requirement for a master’s degree. The expectation is that students will form their own opinions, taking a further step in their research journey.
These are presented as a partial requirement for a doctorate. The prospective doctor must propose and make new, original propositions. Originality is not about “reinventing the wheel,” but about generating new knowledge from a perspective that has not yet been studied.
Scientific objectives: what are the steps?
Scientific research must follow certain basic steps to achieve its objectives. These include:
- What is the problem? State your research problem clearly and precisely;
- What knowledge or tools are relevant? Consider all existing knowledge about your problem and then try to solve it from there.
- Hypotheses, theories, or techniques! Think of new ideas or ways to generate new data for a reasonable solution to your problem;
- Did you find a solution? Using the available tools, check if you obtained a solution that is close to or exactly the same for your problem.
- Verification of the solution! Compare the solution with the relevant information and theories. If the result is satisfactory, the research is complete! If not, the hypotheses, theories, procedures, and data obtained need to be corrected.
However, different types of methods have been developed for different forms of research. Let’s look at some of them.
Three methods of legal investigation
Some of the most commonly used scientific methods in Law are inductive, deductive, and hypothetical-deductive. They are used from monographs through dissertations and theses.
- Inductive: Here, we analyze the object to draw general or universal conclusions. It starts from the observation of a particular phenomenon to establish a general proposition. This proposition, in turn, could be applied to other particular phenomena.
For example, it has been observed that elderly consumers exhibit increased vulnerability regarding payroll loans. By inductive reasoning, all elderly people are consumers with increased vulnerability when faced with payroll loan agencies.
- Deductive: We will take the opposite approach: we start with general arguments and move towards specific arguments. First, arguments considered true are presented, and using this logical premise, we arrive at the formal conclusions we seek. We move from the known to the unknown.
For example: (a) the major premise is that the crime happened at 2 PM in the city park; (b) the minor premise is that John was downtown at 2 PM; (c) the conclusion is that John did not commit the crime.
- Hypothetical-deductive: It has characteristics common to the two previous ones. Like the deductive method, it moves from the general to the particular; like the inductive method, its fundamental condition is the experimental procedure.
The researcher selects a set of hypotheses that they believe are viable for approaching their object of study. Through experimentation, these hypotheses can be confirmed or refuted. This verification process is called hypothesis falsification.
For example: (a) observation that there is a strong discourse of family protection; (b) identification of the following problem: are there different types of family; (c) one of the hypotheses raised is that the Constitution recognizes different types of family; (d) this hypothesis can be tested by studying the Constitution in a systemic interpretation, and verifying the interpretation of the STF regarding the concept of family foreseen in article 226, of the Constitution; (e) by falsifying the hypothesis, one can conclude that the legal system recognizes different types of family, which deserve equal protection from the State.
Now that we know some research methods, we can look at some types that can be used in the legal field.
Four types of legal research
In constructing your academic work, it is important to have well-defined formal criteria for research procedures and to clearly state their foundations and support. Let’s look at some types of legal research:
- Theoretical: As a rule, all research is at least theoretical. This presupposes that you will use a good, high-quality bibliographic arsenal to support your arguments. An example is a literature review of Tax Law to discuss the concept of tax in light of the legal system.
- Practical: also called empirical, this means you will work with verified information or information collected within a specific sample. But be aware! It is essential that, even in empirical research, there is a theory to support the practical arguments.
One example is a case study: we can study a specific Supreme Federal Court (STF) decision regarding the concept of tax and compare it with the legal literature on the subject.
- Qualitative: This type of research seeks to identify the nature of objects, prioritizing contexts. It may have descriptive content, but the most important aspect here is the rigorous examination of the nature, scope, and possible interpretations of the phenomenon under analysis. An example would be the study of various political ideologies in the field of Electoral Law, and their foundations.
- Quantitative: This type of research works primarily with data, with something that can be measured and quantified. The data must be collected as precisely as possible and rigorously described in the academic work.
We can illustrate this with a study on the percentage of votes in the National Congress on a specific issue, broken down by political ideology.
We can gather data on each parliamentarian’s voting record and construct a table identifying the voting percentages for each side and what that represents in terms of representation.
- (Extra) Qualitative-quantitative: these are studies that have both quantitative and qualitative characteristics. The data collected are associated with qualitative analyses to deepen the understanding.
We could, for example, interview parliamentarians from each political ideology spectrum regarding a specific vote in Congress, and understand their personal motivation for that vote. In this way, we would have the prior theory explaining the phenomenon; the data collected and tabulated on the votes; and qualitative analyses of that data. But how do I create a good research project? An important requirement is having access to a quality bibliography.
The importance of a good bibliography
In any type of research we present, it is essential that we have good, up-to-date, and reliable sources.
In final course projects, especially dissertations and theses, we should avoid manuals and compendia because they provide more superficial knowledge, suitable for beginners. The more in-depth the author’s treatment of the subject, the better! Let’s look at these:
- HeinOnline: One of the best digital legal platforms, featuring full content from academic law journals, US Supreme Court decisions, and international agreements and treaties in various languages.
- Google Scholar: You can search for your research topic directly in scientific journals, which have more in-depth and accurate data.