Paradigms of Legal Research Connecting Theories, Methods and Phenomena: Doctrinal, Realist and Non-Law Focused Legal Research

Abstract

Abstract: Legal research is important because the stakes are high for society as a whole, as well as for individuals’ whose rights and duties are under analysis. The research is contentious, however, because there are deep philosophical disagreements about three main issues: what is law? what is “good”? and what is a desirable social order? In answer to the first question, although most legal scholars agree that law includes the texts of legislation and cases, there is intense disagreement beyond that basic phenomena. Debate about “good” and social order are matters of political philosophy and these are hotly contested as the visions of society offered by politically conservative and progressive scholars are markedly different. Desirable social order too is highly contested and reflects political philosophy. These three questions and their answers provide the often hidden foundations of the vigorous debate about appropriate topics and legal research methods. This article approaches the problem by engaging the disciplinary concepts of “theory,” “method” and “phenomena” and applying them to legal scholarship. To do so, it develops three paradigms of legal research: Law as Text, Law as Social Phenomena and Law as Data, which provide distinct theoretical justifications and methods for approaching phenomena in legal research.

Keywords: Legal Research, Legal method, Law as a Discipline, Doctrinal method, Legal Realism, Legal Philosophy

JEL Classification: k10, k20, k30