Doctrinal Research

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Doctrinal Research

The T. MANN, AUSTRALIAN LAW DICTIONARY defines Doctrine as ‘a synthesis of rules, principles, norms, interpretive guidelines and values’ which ‘explains, makes coherent or justifies a segment of the law as part of a larger system of law’.

The term ‘doctrinal’, according to T. Hutchinson & N. Duncan (“Defining the doctrinal”, 17 DEAKIN L. REV. 2, 2012) is derived from the Latin ‘doctrina’ which means instruction, knowledge or learning.

Common Law

As noted by Hutchinson, Terry C. (2014, Valé Bunny Watson? Law librarians, law libraries, and legal research in the post-internet era. Law Library Journal, 106 (4), pp. 579-592), the “common law is built on the ‘doctrine’ of precedent. Legal rules are ‘doctrinal’ because they are ‘rules which apply consistently and which evolve organically and slowly’ (T. MANN, AUSTRALIAN LAW DICTIONARY).

In the method, the essential features of doctrinal research involve a critical conceptual analysis of all relevant legislation and caselaw to reveal a statement of the law relevant to the matter under investigation. The scientists and social scientists have always been a little critical and even scathing about this text based ‘research’, referring to it as ‘scholarship’ rather than true research. A ramification of this affecting law librarians emerged on a public discussion list (…) where one law librarian commented that the library was not able to call itself a research department because ‘A part of our organisation that does pure statistical analysis and research, doesn’t believe what we do is ‘research’, and therefore we can’t use the word’.

Law as a ‘legal science’ and of the law library as the ‘lawyer’s laboratory’

C.C. Langdell, who was a Harvard Law School librarian and law professor, wrote that law, “considered as a science, consists of certain principles or doctrines. . . . Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases. . . . Moreover, the number of fundamental legal doctrines is much less than is commonly supposed. . . . If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. . . . It seemed to me, therefore, to be possible . . . to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines’ (C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS, 1871).

A few years later, Langdell commented that the “work done in the Library is what the scientific men call origin al investigation. The Library is to us what a laboratory is to the chemist or the physicist, and what a museum is to the naturalist’ (Harvard Law School Annual Report, 1873-74)

Fifteen years later, Langdell added that it “was indispensable to establish at least two things – that law is a science, and that all the available materials of that science are contained in printed books. . . . My associates and myself, therefore, have constantly acted upon the view that law is a science and that a well-equipped university is the true place for teaching and learning that science. . . . We have also constantly inculcated the idea that the library is the proper work-shop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists”.

Similarly, JOSEF REDLICH, in his work “THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVERSITY LAW SCHOOLS” (15, 1914) wrote that the law ‘ought to be studied from its own concrete phenomena, from law cases, in the same way that the laws of the physical sciences are derived from physical phenomena and experiments’.

However, Langdell noted later that ‘Law has not the demonstrative certainty of mathematics . . . nor does it acknowledge truth as its ultimate test and standard, like natural science’.(Harvard Law School Annual Report).

In Australia, the Pearce Committee (Australian Government Publishing Service, 1987) categorised the research being undertaken by Law Schools as predominantly doctrinal research, which defined as ‘Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explains areas of difficulty and, perhaps, predicts future developments.’ The Pearce Committee also
identified other types of research, such as:

  • Reform-oriented research, defined as ‘Research which intensively evaluates the adequacy of existing rules and which recommends changes to any rules found wanting’, and
  • Theoretical research, defined as ‘Research which fosters a more complete understanding of the conceptual bases of legal principles and of the combined effects of a range of rules and procedures that touch on a particular area of activity’.

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