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 clients representation, lawyer employs various skills to solve his

problem. Lawyer acquires the necessary knowledge for clients 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 ones 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)

(ii)

Primary Sources
(a) Authoritative
(b)Self Collected
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)
(ii)
(iii)

The Judiciary
The Legislature
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.