Scientific nature of legal research and its contributuion to scholarship

• Author: L. Kometsi
• Published date: 01 January 2017
• DOI: 10.10520/EJC-bf59208eb
• Record Number: lesotho_v25_n1_a3
• Date: 01 January 2017
• Pages: 59-88

SCIENTIFIC NATURE OF LEGAL RESEARCH AND ITS

CONTRIBUTUION TO SCHOLARSHIP

Kometsi L.I. 

Abstract

This paper focuses on the contribution of legal research to

scholarship in general. Legal study should be scientific for as

long as it is research based. Research is by definition

scientific. But the common definition of research seems to

exclude legal research. The scientific aspect of legal research

may be evolving through engaging other disciplines in

research. As an aspect of social sciences, legal research can

benefit from the recently acquired science in social sciences

research. What informs a choice in the relevant and useful

methodology for each particular subject of research is what is

known as paradigm shift. Between the phenomenological and

the positivist research paradigms, legal research reposes more

in the phenomenological paradigm. In this context a

distinction is drawn between internal legal research and

external legal research, both of which are manifestations of a

methodology.

There is a number of legal research methodologies that have

been used before namely, comparative legal research, legal

historical method, empirical methods used in legal research

and many more. It is argued that these methodologies make a

case for legal scientific research. The contribution of legal

research to scholarship is limited to engagement of scientific

methodologies of research. Thus there is need to combine

doctrinal research with scientific empirical research in law, if

legal research is to contribute usefully to knowledge

generation and use.

1.0 INTRODUCTION

There is a vexed debate as to the scientific nature of legal research.

Some scholars argue that legal research is by its nature scientific,

whereas others argue that it is non-scientific.

1

The debate has the

effect of influencing the methodologies taught and adopted at

institutions of research, and of higher learning and may inhibit the

growth of scholarship one way or the other. In other instances it

may affects growth in the content of law in general. Nonetheless,

legal studies have grown and continue to intercourse with other

disciplines. The growth in the intercourse between legal studies and

other disciplines implies a convergence between the two

perspectives on the scientific nature of research.

2

Legal researchers are whiskered into “grounded theory” or the

hermeneutics methodology of research. Why is this, is difficult to

answer. From as long ago as the Shakespearean times, law has been

about argumentation, controversy and theorisation.

3

As such its

study has always been inward. This conservatism has influenced a

competition between science and law as privileged and esteemed

disciplines.

4

Hence there has been minimal use of other

methodologies particularly quantitative methodologies in the study

of law.

5

1

Berkowitz Rand Berkowitz RS The Gift of Science: Leibniz and the

Modern Legal Tradition. Harvard University Press, (2009) 109 -136.

2

Faigman L. "To Have and Have not: Assessing the Value of Social Science

to the Law as Science and Policy." EmoRy lJ 38 (1989): 1067- 1068.

3

“Legal Pragmatism” Internet Encyclopedia of Philosophy

www.iep.utm.edu/leglprag/ (27.11.2015)

4

Hoberman S Professional Educa tion in the United States: Experiential

Learning, Issues, and Prospects. Greenwood Publishing Group, (1994) 6

5

Chui WH "Quantitative Legal Research" in McConville M and Chui WH

(eds.) Research Methods for Law. Edinburgh University Press (2007 ) 46-47.

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