Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

• Citation: (2023) 140 SALJ 365
• DOI: https://doi.org/10.47348/SALJ/v140/i2a5
• Published date: 12 May 2023
• Pages: 365-386
• Author: Nyathi, M,
• Date: 12 May 2023

365

https://doi.org/10.47348/SALJ/v140/i2a5

RE-ASSERTING THE DOCTRINAL LEGAL

RESEARCH METHODOLOGY IN THE

SOUTH AFRICAN ACADEMY:

NAVIGATING THE MAZE

MKHULULI NYATHI†

Senior Lectu rer, School of Law, University of the W itwatersrand

With the focus in th e South Africa n higher education la ndscape shifting t owards

research output, it i s imperative that law sc hools equip postgraduate l aw students

with proper lega l research skills for the m to carry out th eir legal research e ectively.

While the doc trinal legal research methodolog y has always been used in le gal research

and is well suited for the d iscipline of law, it has b een subjected to ser ious criticism

for some time, with some sch olars labelling it a s arrogant, non- objective and lack ing

in academic  air. Those who critic ise the doctrina l legal research method t end to

prescribe for t he discipline of law r esearch methodologi es popular in other di sciplines,

such as the qualit ative and quantitative m ethodologies that ar e popular in the socia l

sciences. W hile a legal scholar doing interdisci plinary legal resea rch is free to use such

methodologies, the se methodologies may n ot be suitable for classi cal legal research.

The doctr inal legal research me thodology remains th e most appropriat e methodology

for legal research, a s it is concern ed with solving legal probl ems through the legal

analysis of legal nor ms. The sources o f legal norms are inte rnally determ ined by the

discipline itself a nd cannot be identied through qua litative and quantitative research.

Legal re search methodol ogy – doctr inal leg al resear ch – interdisc iplinar y

legal res earch

‘Indeed, to su ggest that legal s cholarship should be le ss obsessed with [ legal]

doctri ne would be like suggest ing that histor ians should not spend so much

eort stud ying things t hat happened in the dis tant past, or that ast ronomers

ought to worr y more about ear thly concer ns instea d of concentrati ng so

exclusively on remote he avenly bod ies.’1

I IN TROD UCT ION

The South African hig her education land scape is chang ing. From the

previous emphasis on undergraduate teaching, there is now a deliberate

shift towards making universities research-i ntensive. This means that

universities are now, more than ever before, adm itting more and more

† LL B (Zimbabwe) LLM ( Wits) LLD (Pr etoria). https://orcid.org/0000-0001-

5608-6024. Special tha nks go to Penelope Spe ntzouris a nd Nqobani Nyat hi for

their helpfu l comments a nd suggest ions. All er rors and/or short comings i n this

contribution a re mine alone.

1 Steven D Sm ith ‘In defence of tr aditiona l legal schola rship: A comment

on Schlegel, Weisber g and Dan-C ohen’ (1992) 63 University of Colorado LR 62 7

at 62 9.

(2023) 140 SALJ 365

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366 (2023) 140 THE SOU TH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v140/i2a5

advanced degree students, especially at the doctoral level.2 Without a

doubt, this mea ns that more qualied postgraduate supervisor s are needed

to guide doctoral candid ates duri ng their doctoral studies. While the

challenge for other disciplines may be a short age of human resources in

the form of qualied doctora l supervi sors, there is a further challenge in

the discipl ine of law. As will be demonstrated l ater in this a rticle, there

appears to be l ittle agreement on what constitutes a universa l and settled

legal rese arch methodology. This may leave law doctor al (and other higher

degrees) cand idates uncer tain about how to go about their legal research.

As this cont ribution makes clear, there is i ndeed space for interdiscipli nary

legal rese arch in the discipl ine of law. But this should not result i n displacing

the tradit ional legal research methodolog y.

The issue of which research methodology (and research methods) is

best suited for the d iscipline of law has attracted the attention a nd views

of scholars in several jurisdictions.3 From the available l iterature, what

constitutes the appropriate research methodology in law is indeed a global

discours e. This fact, on its own , is sucient justicat ion for legal scholars i n

South Afr ica to add their voice to the d iscourse and , as a result, the

fundamental premise of this contr ibution is to engage with this global

discourse. But, as wil l be demonstrated later in this article, South A frican

legal scholars are, in a way, already part of the conversation, and this

further justies th is contribution.

Law is invariably a research-i ntensive discipline. It matter s not if a

lawyer is in the academy, in private pract ice, in the corporate sector, or

is occupying a public or judicial oce — a lawyer is always bound to

research the law. Therefore, it is not on ly lawyers i n the academy with

advanced law degrees (or those working towards atta ining advanced law

degrees) who resea rch the law. For example, lawyer s in private prac tice

are also i n the business of leg al research. T hey often research the law

after receiv ing instruct ions from their clients. They a lso frequently have to

re-exa mine their prev ious research and conclusion s once the opposing par ty

(or the opposing par ty’s lawyers) have responded to their correspondence,

pleading s or other litigation-related documents. Judges a re also often

2 See infor mation from selected u niversities avai lable at https://www.wits.ac.za/

research/researcher-support/; http s://www.wits.ac.za/postgraduate/wits-postgradu ate-guide/

?gclid=Cj0KCQjwuuKXBhCR ARIsAC-gM0iQuinxkPmrkEU HVOgwUidpBbca

3aeUfTEdUzEIq f-NCpIF2RiP4x4aApqREA Lw_wcB; and https://www.up.ac.za/

programmes/year/2020/type/pg?gclid=Cj0KCQjwuuKX BhCRARIs AC-gM0g5YOn

I5raIBl9Pr4FHcsOCSYQmbzNjY62cwM-ov4jNGtYLKe7M1rkaArwLEALw_wcB,

accessed on 14 Augu st 2022.

3 See Terry Hutchinson & N igel J Duncan ‘ Dening a nd describing what we

do: Doctri nal legal resea rch’ (2012) 17 Deakin LR 83 at 85–6; Mat hias M Siems &

Daithí M Sít high ‘Mappi ng legal res earch’ (2012) 71 Cambridge LJ 651 at 666–74.

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