Selection and formulation of problem

Problem is a general word and takes its colour from the

context it uses. Term ‘problem’ derived from the Greek word

“Proballein’ means a question proposed for answer. John Dewry

defines problem as “the need of clearing up confusion of

straightening out an ambiguity, of overcoming obstacles, of

covering the gap between things as they are and as they may be

when transformed, is, in germ a problem”.

The term ‘Identification of Problem”, “formulation of Problem”

and Solving of problem” have different meaning. Identification of

problem is the initial phase of research. Formulation of problem

comes after identification then researcher starts researching

facts to provide solution for the formulated problem. According

to Metron “It I often more difficult to find and to formulate a

problem that to solve it”.

Research often starts from an idea, a question or an extension of

a previous line of enquiry. Methodologically, problem-finding is

essentially a thinking process. It does not involve action or

experiment.

Identification of Research Problem

A Research starts with the identification of research problem.

Identification of good research problem is not as easy as it

seems. It is a difficult and time consuming task. Success is

research depends upon the appropriate selection of problem. A

faulty identification may defeat the purpose of research and may

land the research in unanticipated difficulties at later stage.

Identification of research problem is a vital work of a researcher

because every problem may not be researchable and all

researchable problems are not suitable for all research. For

example, A social problem may be a problem for social research

but it may not be useful for legal research. Although a legal

researcher can take it into consideration with some

modifications.

prima-facie selection or identification of research problem may

appear to be a simple task but in practice researcher finds it very

difficult and complex.

Problem finding originates at the level of primary process

thinking and the primary processing thinking may be pre-verbal

or into the form of stack up, simple and childlike use of an

interrogative pronoun like a ‘why’ and ‘how’, addressed to a

particular focus of experience. Further secondary process

thinking can occur only when sensation has ben reduced to

percepts and percepts in turn are reduced to concepts.

Selection of Problem in legal research

Utility of research for academicians is an established fact, but in

legal field, research is also a continuous process among lawyers

and judges. Law comes into action to solve the problem of any

individual, group or society.

In any client’s representation, lawyer employs various skills to

solve his problem. Lawyer acquires the necessary knowledge for

client’s problems., through legal research. Without firm

understanding of law and its applicability he neither negotiates

effectively with client nor suggests proper solution to get justice.

To achieve advocacy skill he has to work like a researcher and do

Systematic research. First he has to identify those problem,

which has legal solution, and then he formulates the problem

accordingly. Inadequate formulation of problem leads o lose the

case of faulty result. The research ability is also a must for a

judge. He should think logically. All the statements present

before him do not contain a problem so he should identify or

locate the renewal problem between parties. He should pin point

specific problem which is to be determined.,

For example if a researcher wants to work in the field of

tribal rights he must have deep insight over the area, and be an

expert of that subject and below to that community. So on the

review of literature and his personal experience; he perceives a

problem that L laws are not able to protect the rights of the

tribes, although various laws have been enacted after

independence. This problem has many aspects like violation of

fundamental rights, legal rights or human rights of the tribe.

Researcher can further visualize that tribes are not aware about

their girths or he can question, Are tribes not aware about their

rights? In this way he identifies and then formulates the legal

researcher problem.

Sources of Problem

In the process of identifying a problem selection of sources is

important. First task is identification of source from where he

can get suitable research problem. Selection of source depends

on whether it is doctrinal research or empirical research.

If researcher is interested in doctrinal research he may select a

problem from a given theory, legal principle or established

doctrines. A clue for research problem can also be obtained from

reading and contemplating upon previous suggestions made by

educators or research ancestors.

Beside that following are the fields in which a legal research may

look for problem of research.

1. Observations or experiences – Research problem can also

be identified on the basis of daily experience of a

researcher. Something that a researcher would like to learn

more about, anything happening in one’s life, or observed

from others life, Personal experience etc.

2. Already completed work – Problems may be selected from

among the suggestions or recommendations given by

ancestor researchers, or work already done in the same

field.

3. Discussion – Researcher can select problem, discussing

ideas with other, i.e. classmates, teacher or other experts,

they are always a logical source of problem. Research

scholar pursuing for degree discusses with the supervisor

to find and suggest a problem.

4. Interest and curiosity – Some students identify research

problems from something in which they have interest. He

may select a problem form a given theory or situation in

which he had great curiosity.

5. Research Literature – Researcher can also select problem

with the help of books, newspaper, encyclopedias, journals,

covering latest or current problems or issues

6. Controversial and dark areas – A legal researcher may

select area of darkness, controversy or contradiction for

identification of research problem ,like drawbacks and

loopholes in the enactment. Problem may also be selected

from those areas which have not been investigated.

7. Social change – New social problems pave the way for new

opportunities for empirical legal research. Globalization,

new technological changes bring forth new social problems

and accordingly new laws.

Methods and tools for Data Collection in Legal Research

Different tools are better for different purposes and different

research situation. In choosing among tools, you should consider

various factors, nature of source, contents, utility for research,

accuracy, time period, easy access and updating cost etc.

Factual mat4erial can be obtained from many sources, direct or

indirect. It is necessary to evolve a systematic procedure and to

choose correct method to collect relevant and adequate data.

The methods of data collection mean a purposive gathering of

information from universe of study which is relevant for

research. The method of data collection depends on nature,

object and scope of study.

Category of Legal Research Materials

Legal research materials are voluminous and complex. To collect

relevant data, you must research strategically. A careful

consideration of available resources is very important. Research

plan will vary from work to work. Factors affecting methodology

of research are time available, primary or secondary source

available, initial knowledge of research cost etc.

P.V. Young classified these sources into documentary and field

sources. According to G.A. Lundberg sources of information may

classified into historical sources and field sources.

Legal Research material can be divided into two categories.

(i) Primary Sources

(a) Authoritative

(b) Self Collected

(ii) Secondary Sources

The choice of Data

The choice between primary and secondary data depends upon

the nature of study. Actually the differ in degree and there

sources of information are different. For examining the old facts

only secondary data is sufficient. Primary data are useful in

receiving the new facts.

Primary sources

In legal research, two kinds of primary sources can be collected

(1) Primary sources from primary authority.

(2) Primary sources which are collected by researcher

himself by using questionnaire, interview or schedule

techniques. That is the basic difference between social

science and law.

For collection of primary data an original enquiry may be

conducted Primary data are collected by the researcher or his

agent for the first time.

In brief primary data are those, which are collected afresh and

for the first time and thus happen to be original in character.

Usually, primary data are published and presented by concerned

authorities whom themselves are responsible for its authenticity.

Primary authority

Primary authority constitutes or creates the law while sources

refer to the publications in which research materials are located.

Statute is a primary authority, which is published by various

publications, these publications are primary sources.

First of all we should see the hierarchy of primary authorities in

India. Basically in india la amanates from three types of

government bodies.

(i) The Judiciary

(ii) The Legislature

(iii) The executive

i. The Judiciary

The primary sources are creation of the primary authorities.

Courts are a primary authority in India and judgment given by

them are primary sources. A court not only resolves the dispute

between or among the persons but also create precedent.

Precedents are the most valuable primary source for lower

courts. The “Ratio Decedendi” of particular case is a precedent

for future case.

A researcher can take help from decided cases. Supreme Court,

High Court or Lower courts at different levels create law. These

rules, judgements and reasoning in a decided case are generally

published in AIR or SCC under authorization. These authorized

publications become ‘primary sources’.

(ii) The Legislature

The Legislature authorities play an important role in research.

We have parliamentary form of government. Legislative bodies at

center, state and local levels create statute, enactment, Act etc.

Power to amend the supreme law of the land, ‘the Constitution’ is

also with the parliament (center legislature). The Indian

Constitution defines the powers of government and the rights of

citizens. Statutes regulate a wide range of function or behavior

by government in the Country.

The state legislature and local bodies make laws. The laws are

applicable in their allotted field (jurisdiction), i.e. state or local

areas.

(iii) The Executive

Executive bodies at different levels generate law. At center, state

and local level their functions differ according to the powers and

jurisdiction. They “generate law through two chief mechanisms,

agencies issue decisions, which resemble judicial cases and in

that they simultaneously resolve specific disputes and stand as

precedent for future disputes. Agencies also promulgate

regulations, which resemble statutes in that they address a range

of behavior and are stated in general terms”.

Executive can also issue ordinances. The President and the

Governor being the executive head at center and state

respectively have powers to issue ordinance. At the time of

emergency ordinance regulate a wide range of behavior of

government and of public. A researcher can evaluate or analyze

these ordinances and its effect as ‘primary sources’.

Primary – Field Sources

The field sources are those from where information is gathered

for the first time and by researcher himself or by his agent.

Information gathered is called primary data. These data are more

reliable on the face. Generally primary data is gathered through

some tills.

To gather new facts or data certain instruments or tools are

needed. The e4lection of suitable tool is of vital importance for

successful research. The method of collection of data depends

upon the nature, object and scope of research work. The

availability of time and resources also affect the choice of the

method be adopted in the collection of data.

Finding tools: “Tools are the ways and means to conduct

research and the conduct of research could only be justified

through the method and technique meant for it. The collected

evidence is called data and the tools used for this are called data

collecting devices or tools, which is a common phenomenon in

the behavioral research”.

The tools for primary data are observation, questionnaire,

schedule, interview, case study etc.

i. Observation

In socio-legal research, observation is the most reliable method

for gathering primary data. Information relating to life,

language, festivals, customs, etc. can easily be gathered by

observation. This method researcher personally and directly

observes the condition of field.

II. Questionnaire

When the universe of study is wide, questionnaire is the best tool

to gather information. It is more suitable in cases where

informants are educated or literate and spread over a vast area.

A questionnaire contains many questions relating to research

work. It is like an information form, which has a space for

answer. It is sent to the respondent by post and filled by

respondent himself.

Questionnaire is one of the most useful method is legal research.

Especially for socio-legal research it is more suitable to gather

facts.

III. Schedule

Response to a questionnaire may be obtained in two ways. One

way is to send questionnaire by post to various respondents.

Second way is that researcher may himself present the

questionnaire to the respondent and filled by researcher. This

second method is called schedule.

Schedule is a combination of questionnaire and interview. Like

questionnaire it has a list of questions and like interview

researcher is in a face-to-face situation with respondent and asks

questions. It is useful for uneducated or illiterate respondents.

IV. Interview

The method of interview is used very extensively in legal or

socio-legal research. Under this method researcher meets

informants to interrogate them about research. It is a direct way

of inquiry.

If a requirement of research is to obtain information regarding

family budgets, habits, customs. Interview is the best method.

Purpose of interview is to probe into the inner life of the

interviewee investigator (researcher or any authorized person by

him) is present on the spot.

V. Case study method

Socio-legal research is generally aimed to problem solving. To

find out the root cause of problem or to compare persons,

cultures, habits etc, case study method is used.

Where member if units are small and object of work is to

examine real life of person or institution, case study method is

useful. Empirical research required quantitative data through

case study method.

Secondary Sources

The other authorities which are not acting in a law making

capacity are secondary authorities like Non-Government

Organisations, individuals and autonomous bodies. These

secondary authorities do not have power to create law but only

to comment on the law.

The secondary sources have important place in legal research.

Actually they are critiques on law and describe or analyze laws.

These secondary sources do not contain law as it is, but they

contain law with some amendment, suggestion or comments,

Such as text books, case digest, periodicals, journals, reports,

encyclopedia, dictionary etc.

Case Study Method

The case study method is a type of an experiment research. It is

one way of organizing social data for the purpose of seeing social

reality. It is not a specific technique. Case study method has

different meanings when applied to different disciplines such as

psychology, law, medical. For the first time this method was

introduced by Frederick Le into social science research.

Case study methods is the most useful method in socio-legal

research. It evolves qualitative analysis. This methods is used to

explore the life of individuals, family, group, an institution or

community. In this method a unit is studied as a whole.

Harbert Spencer used this method to compare different cultures.

Legal researcher can use this method for studying many

problems like comparative study of legal systems of two

countries or societies.

Defining case study method Goode and Hatt writes “Case study

method is a way of organizing social data so as to present the

unitary character of the social subject being studied., Expressed

somewhat differently, it is an approach which views a social unit

as a whole”.

According to P.V. Young, “Case study is a method of exploring

and analysing the life of a social unit, be it that a persons, a

family, an institution, culture group or even entire community.”

Robert K. Yin defined case study method as “an empirical inquiry

that investigates contemporary phenomenon within its real life

context; when the boundaries between phenomenon and context

are not clearly evident, and in which multiple sources of evidence

are used.”

Stuart A Queen describes “case study as the examination of a

single situation, persons, groups or institutions as com0polete

whole in order to identify types and process”.

Phases of Case Study

The method of gateway and analysis data in case study method

has following phases.

1. Selection of Case – Selection of case depends upon choice,

conveniences and interests. One can select special or

general problem, or he can select only one particular area

of more than alike areas. After that he can take an

individual, group community or institution as a unit.

2. Statement of the Problem – In this process the problem is

identified to study intensively. Accordingly tools are used to

collect data. Life history (autobiography), historical

documents and personal information are useful tools for

data collection in case study method. After selection of case

researcher starts to identify the problems ad organizes

them into an integral whole.

3. Analysis and Conclusion- After collection and classification

of data an analysis is made. Deductive analysis is useful and

general relation should be made, which helps to draw

conclusions.

Basic Assumptions

The case study method is not merely a technique but is a belief.

This belief is based on certain basic assumptions. They are as

follows.

1. Unity of Human Nature- Scientists assume that no two men

are totally different but all men share some common notice

and are fundamentally alike in some matters. Causes for

differences in their behavior are due to their social

surroundings.

2. Complicity of Society facts – The social scientists believe

that social circumstances tend to occur repeatedly from

time to time with some changes. The study of various

societies and culture on different times prove the fact that

all cultures show much stimulation in different time, so

deeper study is required.

3. Effects of time, law or society are dynamic in nature – Social

legal phenomena are influenced by temporal order. So to

understand the various aspects of institution or individual

long time is required.

4. Similarities in human responses – The are some similarities

in human responses. This helps the researcher to apply the

inference from a single unit to the unit as a whole or to

similar other units.

For example feeling and responses of people are more or less

same regarding ‘polygamy’, ‘rape’ or ‘dowry’.

Types of Case Study Method

On the basis of purpose, case study method is of two kinds

1. Deviant Case analysis

2. Isolated clinical case analysis.

“In deviant case analysis the researcher starts with different

already found between two persons or group of persons and his

task is to read backward to deduce the condition that might have

produced the difference”.

In isolated clinical case analysis the emphasis is upon the

individual unit with respect to some analytical problem”.

Sources of Case Study Method

The sources of case study may be divided into two categories

a. Personal Documents

b. Life History

a. Personal Documents – The personal diaries,

autobiographies, letters and memoirs reveal direct

information. These personal documentations are the

important sources of information for the study of the

problem. These include such manuals which throw light on

feelings; his way of life or hidden secrets of an individual.

b. Life History – This is also known as case history. Besides

personal document life history is also an important source

of information in case study method. Information about a

person can be gathered in various other ways like interview

of parents, neighbours, friends, relatives of that person and

observation of his day-to-day life etc.

Various other methods are used to collect personal information.

Periodical conferences are useful to bring out the inner

modification of person without his knowledge. Socio-psycho-

medical methods can be used to collect an authoritative life

history of person.