Undertaking the Process of Legal Research

Legal research itself is a fairly formulative process.

It involves the forward-step actions of uncovering a solution to a legal question or looking for the legal precedent that can be cited in a brief or trial. Essentially, and in most cases, the legal researcher is left to identify issues through the appropriate selection of an applicable and relevant research problem and its proper formulation. However, at the same time, society plays a great part in problem identification since legal research itself in its most impactful form is a sociological phenomenon. This could be termed as the sociology of law.

Huston Smith stated that “Every society and religion has rules, for both have moral laws. And the essence of morality consists, as in art, of drawing the line somewhere.” But why does society have to draw the line and Identify the problem? For the most part, society makes up the basis of law itself and the problems that arise with it. One of the first steps of legal research identification and formulation of a problem is the identification of an area of general interest by the legal researcher in order to formulate the exact issue in an intelligent form.

One of the calibers of society is that unlike a researcher the areas of general interest to identify legal research problems are vast and expansive. Most of the time, it is observed that academic research work put together by the students or research scholars is based on certain guidelines, and sometimes the researcher himself may be negatively limited to certain areas as research problems are designed by certain agencies through funding and it would be the student’s job to only delve into these issues, thereby limiting his expressive ability.

Unlike in a society, where the constraints of such agencies play no value, certain Controversial and divisive issues barely highlighted in law reports and statutes such as homosexuality and racial discrimination are easy to be identified. As a result, problems are to be very readily extracted by society in terms of how they can have a sociological effect on the law. One example can be seen in the United States, in terms of black prejudice, where according to polling by the Pew Research Center nearly ‘nine in 10 blacks say discrimination still exists’.

On another note, Society generally tends to have more certitude in its problem identification than perhaps the average legal researcher would. No research problem can be thoroughly identified and analyzed without the full mental participation of the legal researcher, which most legal scholars fail to appreciate and realize, and to which the merits of communal research identification take further precedence. The ability of society to realize problems and identify them is a major reason why we have statutes, precedents, and the Constitution even today.

However, at the same time, one would argue that there are different alternative approaches to this form of thinking.

During problem identification and formulation, researchers should perhaps delegate differing opinions regarding the problem with stakeholders, experts, and perhaps also the society; undertaking a form of non-doctrinal legal research in order to find the most heavily examined problems not only on a legal perspective but also from a social one. The researcher may also further this through his analysis of relevant literature to get his knowledge on the selected problem up; reviewing conceptual and empirical literature along the way.

Another alternative that could be used is the identification of a legal research problem by legislatures. Legislatures are known to formulate laws in order to meet the specific needs of the people within the society. The fact that they are brought by society in general to represent their needs is essential to how they could identify legal research problems. This could be seen through the collection and weighing of alternatives and of information on perhaps a proposed amendment or issue although this is usually carried on by a law commission.

In conclusion, while it is true to a greater extent that society should identify legal research problems, it must not be the only one. A mixed formulation identification process should be tasked with the expertise of both legal researchers and society for a proper sociological report based on the legal framework too.

Lastly, it's important to remember that the issue to be identified shouldn't be made up (entirely formulated in one’s own head); it must be focused on empirical and rational observations, and the proposed research should reflect their importance. The importance value should also be considered in terms of their usefulness and the number of people who will benefit from them.