Doctrinal research : researching the jury

This chapter examines the doctrinal methodology which many lawyers consider best typifies a distinctly legal approach to research. Legal research skills have been identified as a core skill for lawyers, and within the profession, such skills are regarded as synonymous with the doctrinal research method. Good legal research skills are a necessary step in attaining the ability to ‘think like a lawyer’ and achieving valid legal reasoning outcomes. For lawyers, therefore, the doctrinal method is an intuitive aspect of legal work. Yet as this chapter demonstrates, the doctrinal methodology is not without its detractors. There have been serious criticisms of the method put forward by exponents of the various critical legal theories, as well as a perception in some academic circles that the doctrinal research method is nothing more than mere ‘scholarship’ and as a result less compelling or respected than the research methods used by those in the sciences and social sciences. Despite these attacks, and the incursions on the method posed by the growth in the use of non-doctrinal and interdisciplinary research work by lawyers, the argument put forward in this chapter is that the doctrinal method still necessarily forms the basis for most, if not all, legal research projects.

Defining and describing what we do : doctrinal legal research

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (‘empirical facts’). Legal education needs to prepare our students for this broader legal context. This paper examines how ‘empirical facts’ are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.

Valé Bunny Watson? Law librarians, law libraries, and legal research in the post-internet era

Katharine Hepburn’s entertaining portrayal of reference librarian Bunny Watson in Desk Set (1957) moves her character from apprehension about new technology to an understanding that it is simply another tool. This article outlines the impact of technology on academic legal research. It examines the nature of legal research and the doctrinal method, the importance of law libraries (and librarians) in legal research, and the roles and implications of the Internet and web search engines on legal research methods and education.

The doctrinal method: Incorporating interdisciplinary methods in reforming the law

The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.

Assessing testamentary capacity – who does it better? Lawyers or doctors?

The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

Responsabilidade do estado brasileiro pela concretização da Razoável duração do processo civil

O presente trabalho possui como objetivo analisar do ponto de vista estritamente acadêmico e doutrinário a responsabilidade do Estado brasileiro na concretização da razoável duração do processo civil, postulado processual tipificado na constituição federal através da emenda nº 45, criando um novo inciso em seu art. 5º que dispõe sobre os direitos e garantias fundamentais do homem. O embasamento teórico deste trabalho se manifesta através de consiste pesquisa doutrinária, em livros e periódicos da área jurídica, realizando um cotejo das opiniões de estudiosos nacionais e estrangeiros, da área do direito público. Desenvolve-se, por fim, a noção de dupla responsabilidade do Estado, sendo a primeira, a responsabilidade do Estado como norma definidora de tarefas a serem perseguidas, e a segunda a responsabilidade civil, devida por possíveis danos gerados em processos excessivamente lentos que violam o postulado da razoável duração do processo.

The international regulation of sustainable forest management : doctrinal concepts, governing institutions and implementation

The overarching objective of the research was to identify the existence and nature of international legal principles governing sustainable forest use and management. This research intended to uncover a set of forest legal considerations that are relevant for consideration across the globe. The purpose behind this, is to create a theoretical base of international forest law literature which be drawn upon to inform future international forestry research. This research will be of relevance to those undertaking examination of a particular forest issue or those focusing on forests in a particular region. The thesis explains the underlying legal issues in forest regulation, the dominant international regulatory approaches and makes suggestions as to how international and national forest policy could be improved.

The bridging of pluralistic visions of science and ethics for bioethics - Tibetan medicine as compared with the Western research on longevity and human genetic enhancement

La thèse examine les liens entre la vision pluraliste de la science et l’éthique de la médecine tibétaine et les nouvelles pratiques en médecine occidentale, soit la longévité et la recherche sur la génétique amélioratrice. Elle cherche à cerner l’apport que la médecine tibétaine peut apporter aux recherches occidentales sur la longévité et la génétique humaine amélioratrice. Elle traite donc d’un enjeu social clé et du débat qui s’y rattache. La découverte et la description sont centrales à la méthodologie et informent l’analyse. Nous avons examiné dans un premier temps, les travaux de recherche sur la longévité reliée à la génétique amélioratrice (mémoire et muscles). Nous nous sommes penchés également sur les fondements de la médecine tibétaine en tant que système intégré. Pour ce faire, nous avons traité des notions telles que la santé, l’identité, la perfection et l’immortalité. Notre cadre conceptuel repose sur la théorie bouddhiste de l’interdépendance qui se caractérise par la formulation de catégories qui ensuite sont synthétisées dans l’essence; les deux niveaux d’interprétation de la théorie sont décrits en détail avant de passer à une comparaison avec la notion de complexité occidentale. La médecine tibétaine de fait présente un système où l’éthique et la science sont intégrées et se prête bien à une comparaison avec la vision pluraliste de la science à partir d’une perspective éthique/bioéthique. Les commentaires recueillis auprès des experts nous ont permis de cerner comment la science, l’éthique et l’amélioration de la longévité sont définies au sein des deux paradigmes de l’Est et de l’Ouest. Nos résultats montrent six points qui se dégagent au terme de cette recherche permettent de jeter un pont sur la vision pluraliste de ces paradigmes. Ceux-ci transcendent les points de vue doctrinaux individuels de religions ainsi que du monde scientifique occidental. Plus que tout, ils laissent entrevoir un cadre de références novatrices qui contribuera à la prise de décision à l’égard de questionnements bioéthiques.

Singh v The Queen: A Path Toward Confusion, Redundancy and Doctrinal Inconsistency

In Walkington v The Queen, the English Court of Criminal Appeal enunciated criteria fordetermining whether a building contains parts thereof for purposes of ss 76 and 77 of the CrimesAct 1958 (Vic): burglary and aggravated burglary respectively. In Singh v The Queen, the VictorianCourt of Appeal was confronted with a situation in which a trespassory entry had been made into abuilding that, according to the principles enunciated in Walkington, did not consist of any part orparts. Recognizing that there was scant evidence with which to prove that the accused’s entry hadbeen accompanied by an intention to commit one of the crimes specified in ss 76 and 77, the courtnonetheless affirmed the applicant’s conviction for aggravated burglary under s 77. In so doing,the court reaffirmed its earlier decision in The Queen v Chimirri which held that a trespassoryentry into a building results in continuing trespass for as long as the accused remains in thebuilding. In Chimirri, it was further held that if an accused forms an intention to commit one ofthe specified crimes subsequent to the initial trespassory entry and enters a part of the buildingwith that intention, he or she has committed burglary, aggravated burglary, or both by virtueof the continuing trespass doctrine. The discussion to follow will demonstrate that the court’sreasoning in both Chimirri and Singh is not only flawed, but flies in the face of the very passagesfrom the judgment of Lane LJ in Walkington that were quoted with apparent approval in Singh.The discussion will further demonstrate that the continuing trespass doctrine adds nothing of valueto the law of burglary as it existed prior to Chimirri and Singh; rather, its only effect is to addconfusion and uncertainty to what had been a settled area of the law.