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Purposes & Styles of Research
A lot of university research is carried out simply in order to advance knowledge: to challenge or support a particular scientific theory, for instance. Other research may be practical or applied: finding out new or better ways of doing things. Technological research may be like this. Research in law may have elements of both these purposes. However, because it is embedded in our political system and our social values, legal research often has a quite distinct approach.
It may seem odd to begin a discussion of research in law with references to 'scientific theories' and 'technological research'. It is necessary, though, because research in the sciences and technology has set some of the parameters within which we think about any sort of research. One of the worst mistakes we can make in embarking on research in law is to assume that we should mimic the style of some stereotype of 'scientific research'.
There are many ways of cutting into the diversity of research approaches. 'Style' is one way; 'purpose' another.
Style
'My colleagues in the social sciences talk a great deal about methodology. I prefer to call it style.'
Freeman J. Dyson, physicist (quoted John Brewer and Albert Hunter. Multimethod Research. Newbury Park, CA: Sage, 1989.)
Research styles, even in the sciences, may be classified as generalising or specifying. Some researchers look for underlying laws of nature or, as physicists say these days, 'a general theory of everything'. Other researchers study detail, diversity and the one-off events of mass extinctions or historical incidents. Stephen Jay Gould has highlighted this distinction in his popular books on pre-history and evolution, and in this review of essays by Freeman Dyson. Dyson identified the generalising style of 'pure' science with Athens, and a more specific and hands-on style with industrial Manchester.
Stephen Jay Gould. “Mighty Manchester.” New York Review of Books, 27 October 1988 Extract p 32.
Aristotle identified five ways of thinking to arrive at truth. The 'Athenian' style of scientific knowledge is 'episteme'; then there is technical skill (techne), practical wisdom or prudence (phronesis), intelligence or intuition (nous), and wisdom, combining science and intelligence (sophia).
Relating these categories to the divisions of university research that I began with, it is not hard to see that pure sciences correspond with episteme, and technical fields like engineering fit, by definition, techne. What about law? Aristotle explicitly linked it to phronesis, or practical wisdom.
'Practical wisdom concerning the state has two aspects: one, which is controlling and directive, is legislative science; the other, which deals with particular circumstances, bears the name that properly belongs to both, viz. political science. The latter is practical and deliberative; for an enactment is a thing that can be done, and the last step [in a deliberative process]'.
- Aristotle. Ethics. Translated by J. A. K. Thomson ('practical wisdom' substituted as a translation of 'phronesis' here - RM). Harmondsworth: Penguin, 1976. pp213-214
We see here that law has a tradition of inquiry which goes back to Ancient Greece, while being decidedly not Athenian, in Dyson's sense. What is most interesting about Aristotle's definition of the legal and political sciences, is that they are both practical - they act, or produce something which can be done - and deliberative, being the end result of a process of reasoning.
With the decline of the 'modernist' paradigm, law has been linked to revival of phronesis as a valuable way of thinking distinct from pure science. Important figures in this revival are Hans-Georg Gadamer (in the first section of his Truth and Method) and Stephen Toulmin. Back in 1958 Toulmin explored a practical way of reasoning which he modelled on jurisprudence. This is discussed in more detail, with extracts, at the resource on Arguments. On the question of style, and the relation between research and action, it is worth reading Toulmin's much more recent essay on 'elitism and democracy among the sciences'.
Toulmin, Stephen. Introduction and Concluding Methodological Reflections from Beyond Theory : Changing Organizations through Participation, ed. Stephen Toulmin and Björn Gustavsen. Amsterdam: John Benjamins, (pp203-225) 1996.
Purpose
The practical aspect of law means, as Aristotle pointed out, that it leads to action. Researchers may choose topics in law for the sake of pure knowledge or technical improvements, but very often they are looking for better ways to achieve ends eg. to conserve the environment or to advance human rights.
It is important to reflect on why you want to do a particular topic before deciding what sort of research you want to do. If you are seeking new ways to achieve some policy goals, then some understanding and use of policy analysis may be important. If you want to see how well some law or institution is working, then you should consider some of the approaches and insights of evaluation research. If your goal is to interpret laws, literature, or any other cultural product, then hermeneutics and some of the issues surrounding how we may read things may be important.
This is getting ahead of the present discussion, though, and into the question of methods. First, why do you want to do this research? Does it have any practical or moral implications? Who would benefit from your research or your findings? Which side are you on? How will you ensure you remain open to alternative points of view?
You do not have to take sides in your research, though lawyers are used to an adversarial approach. There is no problem about adopting a stance; indeed, if you are engaged in practical research it may be essential. There is a problem, however, if it remains unacknowledged and if you are unable to see how it is directing your inquiry. Part of the reason for examining your purposes and style of research, then, is to clarify the values which guide it.
One of the greatest difficulties in practical research is that sometimes we must reach the end of our deliberative process, and proceed to action, before we have complete knowledge of a field. Jerry Ravetz has related this problem to scientific and environmental decisions. William Dunn puts it into the perspective of policy analysis where the problems we analyse may be 'ill structured, squishy, messy, or wicked.' Both these readings discuss constructive practical and intellectual responses in the face of ignorance.
Once we have analysed the purposes and style of the research we feel comfortable with, we can get down to the first stage of the nuts and bolts of doing research: determining our research questions.
Dunn, William N. “Probing the Boundaries of Ignorance in Policy Analysis.” American Behavioral Scientist 40, no. 3 (1997): 277.
Ravetz, Jerome R. “Usable Knowledge, Usable Ignorance; Incomplete science with policy implications.” Knowledge: Creation, Diffusion, Utilization 9, no. 1 (1987): 87-116.