Paradigms of Legal Research Connecting Theories, Methods and Phenomena: Doctrinal, Realist and Non-Law Focused Research
Author: Benedict Sheehy
Legal research is important because the stakes are high for society as a whole,
as well as for individuals’ whose rights and duties are under analysis. The
research is contentious, however, because there are deep philosophical
disagreements about three main issues: what is law? what is “good”? and what
is a desirable social order? In answer to the first question, although most legal
scholars agree that law includes the texts of legislation and cases, there is intense
disagreement beyond that basic phenomena. Debate about “good” and social
order are matters of political philosophy and these are hotly contested as the
visions of society offered by politically conservative and progressive scholars are
markedly different. Desirable social order too is highly contested and reflects
political philosophy. These three questions and their answers provide the often
hidden foundations of the vigorous debate about appropriate topics and legal
research methods. This article approaches the problem by engaging the
disciplinary concepts of “theory,” “method” and “phenomena” and applying them
to legal scholarship. To do so, it develops three paradigms of legal research: Law
as Text, Law as Social Phenomena and Law as Data, which provide distinct
theoretical justifications and methods for approaching phenomena in legal
research.