LME3701 study guide.

CONTENTS Page FOREWORD v SECTION A: LEGAL RESEARCH: GENERAL THEMES 1 1.1 INTRODUCTION TO LEGAL RESEARCH 1 1.2 CLASSIFYING LEGAL RESEARCH 4 1.2.1 Defining legal research 4 1.2.2 Elements of legal research 6 1.2.3 Types of research 7 1.2.3.1 Doctrinal legal research 9 1.2.3.2 Empirical legal research/socio-legal studies 10 1.2.3.3 International and comparative legal research 11 1.3 CONDUCTING RESEARCH IN LAW 11 1.4 RESEARCH DESIGN (PLANNING) AND METHODOLOGY 11 1.4.1 Research design (planning) 12 1.4.2 Research methodology 13 1.4.3 Approaches to research/types of research 14 1.4.3.1 Qualitative research vs quantitative research 15 1.4.3.2 Legal comparative approach 16 1.4.3.3 Legal historical approach 17 1.5 ORGANISING THE RESEARCH AND FORMULATING A WORKING TITLE 17 1.6 RESEARCH QUESTION, PROBLEM OR STATEMENT 18 1.7 SCHOLARSHIP/LITERATURE REVIEW 21 1.8 FUNDAMENTAL ASPECTS OF A RESEARCH PROPOSAL 23 1.9 STYLE AND FORMATTING OF RESEARCH IN LAW AT CLAW 24 1.9.1 Footnote style 25 1.10 CITATION AND REFERENCING METHODS 25 1.11 RESEARCH INTEGRITY AND PROFESSIONAL CONDUCT 26 1.11.1 Plagiarism 26 1.11.1.1 Defining plagiarism 27 1.11.1.2 Copying another student’s work is plagiarism 27 1.11.2 Copyright and academic writing 28 1.11.2.1 Both copyright infringement and plagiarism 28 1.11.2.2 Copyright infringement but not plagiarism 29 1.11.2.3 Plagiarism but not copyright infringement 29 1.11.3 How to avoid plagiarism 29 SECTION B: LEGAL RESEARCH PROPOSAL: LEARNING UNITS 35 Learning unit 1: RESEARCH PROPOSAL 36 1.1 INTRODUCTION 36 Learning unit 2: PRELIMINARY WORK 40 2.1 CONSTRUCTING A RESEARCH JOURNAL 40 2.2 ORGANISING YOUR RESEARCH 41 (iv) Learning unit 3: PROPOSED/WORKING TITLE AND INTRODUCTION 43 3.1 PROPOSED/WORKING TITLE 43 3.2 RESEARCH INTRODUCTION 44 Learning unit 4: PROBLEM STATEMENT 46 4.1 PROBLEM STATEMENT 46 4.1.1 Problem statement examples 47 Learning unit 5: RESEARCH AIM/HYPOTHESIS 49 5.1 WHAT IS A HYPOTHESIS 49 Learning unit 6: POINTS OF DEPARTURE AND ASSUMPTIONS 51 6.1 POINT OF DEPARTURE AND ASSUMPTIONS 51 Learning unit 7: CONCEPTUALISATION OF CENTRAL RESEARCH THEMES 52 Learning unit 8: CHAPTER LAYOUT 53 Learning unit 9: PROJECTED TIME FRAME 56 Learning unit 10: DESCRIPTION OF RESEARCH METHOD 57 Learning unit 11: PRELIMINARY RESEARCH 58 Learning unit 12: EVALUATING YOUR RESEARCH PROPOSAL 59 SECTION C: SCHOOL OF LAW REFERENCING STYLE 63 1.1 CLAW REFERENCING STYLE 63 1.2 BASIC RULES OF REFERENCING IN THE SCHOOL OF LAW 63 1.3 SPECIFIC RULES FOR DIFFERENT TYPES OF SOURCES 64 1.3.1 Books and contributions in books 64 1.3.2 Journal articles 65 1.3.3 Old authorities 65 1.3.4 Internet sources 66 1.3.5 Law reports 66 1.3.6 Legislation 66 1.3.7 International and regional instruments/documents 67 1.4 SUMMARY 67 SECTION D: MISCELLANEOUS 69 1.1 NOTES ON ACCESSING RELIABLE SOURCES OF LEGAL INFORMATION 72 1.1.1 Dangers of the internet as a source of information 72 1.1.2 Reliable, authoritative and persuasive sources of law 72 BIBLIOGRAPHY 74 LME3701/1 (v) 1FOREWORD Dear Student 1.1 INTRODUCTION AND GENERAL ORIENTATION Welcome to the module in Legal Research Methodology. At this stage of your studies, you will have made substantial progress both in your LLB studies and in your understanding of legal research, whether in the form of research essays or other such research work. Consequently, you are well on your way to understanding the complex interaction between various legal subjects, as well as the interrelationship between legal practice and legal research. Banakar and Travers argued in 2005 that “there has been a major decline in the ability of law students and graduates to conduct effective legal research in recent times”.1 Senior researchers, practitioners and members of the bench often express the same concern, which is indeed disconcerting if one considers the degree of research and writing required in the practice of law, whether as a legal representative, or in a legal advisory role, or perhaps as a legal academic or other such researcher. This module, which is a continuation and extension of Introduction to Research Methodology for Law and Criminal Justice (IRM1501), aims to remedy the described situation by creating a sound foundation for effective future academic legal research on the basis of a legal research proposal. It does not deal with basic research skills such as finding sources of law – skills which we assume to be in place from your earlier legal studies – which were directed at developing competencies for legal research. On completion of this module (LME3701), you should have acquired a firm grounding in the various research methods, aids, strategies and processes that are involved in research from an academic perspective. This is what we mean when we say that this module builds on the basic legal skills developed at the first level of LLB studies. Applied practical legal research (i.e. research typically employed in legal practice such as drafting heads of argument) is left to the curriculum for Techniques in Trial and Litigation (TLI4801) in the fourth year of the Bachelor of Laws at the University of South Africa. The current module concerns itself with basic academic legal research from a general perspective in order to allow you to eventually design a research proposal. This study guide was prepared for third-year law students who have a basic grounding in legal research from IRM1501, one of the modules in the first year of study. This guide provides a synoptic overview of essential legal research themes specifically for the novice legal researcher in the legal research planning stage. At its core, the module is grounded on research methodology and includes reference to the legal research conventions needed to execute basic academic legal research in preparation for writing up a research report in your fourth year of study. During your fourth year, you will be required to submit an LLB research report as part of RRLLB81. This module (LME3701) is designed to communicate general aspects of the research process and to demonstrate the planning phase connected to research in the field of law, which links up with the eventual writing up of your research report at the 1 Banakar R & Travers M Theory and method in socio-legal research (Oxford Hart Publishing Oxford 2005) xi–xii. (vi) FOREWORD fourth level of study towards the LLB degree. Practically, the modules concerning research at the Unisa College of Law can be demonstrated as follows: FIGURE 1 Modular sequence of legal research at Unisa College of Law This module will concentrate on the legal research methodology necessary for drafting a research proposal. You should, however, be aware that there are also other methodologies used to examine socio-legal fields. Socio-legal research cannot be easily defined. Socio-legal studies cover a range of disciplinary contexts in the social sciences and law, and relate the legal to the sociological, political and economic dimensions of human activity. Thus, socio-legal research has as its essence interdisciplinary relationships and different perspectives on legal issues. While you may be required to employ these methods during future research endeavours, our concentration here is on legal research methodology. From the outset, you should realise that research is an evolutionary process. Whatever the nature of the research, whether basic undergraduate research essays or assignments or postgraduate specialised research, we are all bound by certain basic research rules. Research is evolutionary because it builds from a basic concept and culminates in the production of new knowledge that contributes to both your chosen field of law and the research culture of South Africa. 1.2 PURPOSE AND OUTCOMES (a) Purpose The purpose of this module is to provide a professional development curriculum in the sub-field of academic legal research. Specifically, it equips students with the values, knowledge and skills required for applying the legal research skills, methodologies, techniques and technologies that contribute to the design and production of evidencebased research knowledge in a variety of legal professional capacities. It incorporates African epistemology and the indigenisation of research processes and recognises that the Constitution of the Republic of South Africa, 1996, is the basis for all legal action and that the Bill of Rights advocates the principles of Ubuntu, fairness, openness, responsiveness, social responsibility, and the humanisation of law. LME3701 serves as a foundation for RRLLB81 in the fourth year of the Bachelor of Laws. Students who have been credited with this module (LME3701) will be able to compile, analyse, criticise and evaluate evidence-based knowledge and plan the production of research products such as research reports. In essence, this module develops your understanding of research skills in an applied context with the aim of producing a research proposal based on a research problem identified in Tutorial Letter 101. It is important that you consult Tutorial Letter 101 in order to identify LME3701/1 (vii) Foreword the legal research problem we want you to address in this module – see specifically Assignment 02 for the semester in which you are registered. (b) Outcomes The holistic outcomes for LME3701 and their corresponding assessment criteria are as follows: Specific outcome Assessment criteria 1 Demonstrate an understanding of the conjectural framework for legal research. 1.1 Current and persistent issues and rules in the application of research precepts in the research process, as they apply to various research activities, are displayed. 1.2 Key terms, concepts, rules, procedures and principles are identified and applied in the relevant subject-specific legal arguments. 1.3 Fundamental knowledge of research skills, techniques, methods and technologies, as they apply in a variety of legal contexts, are displayed in formative and summative assessment. 2 Demonstrate an advanced and clear understanding of the notions and guidelines necessary to undertake legal research. 2.1 The scope, functioning and governing principles of legal research design, method and citation are incorporated into the cognitive framework for understanding the law as a set of related systems. 2.2 Fundamental knowledge of the core aspects of legal research design and methodology is used to substantiate evidence-based knowledge claims using conventional citation methods in practical scenarios. 3 Cultivate formatively sufficient knowledge, skills, values, attitudes and competencies in order to analyse and critically evaluate legal material (the Constitution, legislation, case law and academic opinion) and demonstrate an understanding of legal research in real-life situations. 3.1 Command of both the theoretical principles and practical consequences of specific aspects of the research process is displayed in formative and summative assessments. 3.2 Research conventions and mechanisms used to create a research product, such as a research proposal or other research product, are applied. (viii) FOREWORD 4 Demonstrate an understanding of the implementation and application of just, constitutional and lawful legal research in practice and theory. 4.1 Complex, concrete legal problems and issues relating to the application of research skills and techniques are identified in real or simulated scenarios using theory-driven arguments. 4.2 Substantiated arguments, opinions and solutions are presented, based on research. 4.3 The relevance and applicability of various legal sources and authorities in respect of identified problems are analysed and critically evaluated. 4.4 Different points of view are objectively discussed and evaluated. 5 Apply the principles of ethical legal research in practical situations and solve multidimensional legal problems using the conventions of legal research. 5.1 Responsible advice on an appropriate course of action is given in respect of identified issues in law as part of a research-based scenario. 5.2 Relevant sources and authorities are found to solve unfamiliar concrete and abstract legal problems. 5.3 The knowledge and skills students have acquired in other areas of the law, such as constitutional law, are integrated in discussing, analysing, applying and solving legal problems using a research-based approach. The main constraint when compiling this module was the fact that it is required to fit into the confines of a single LLB module of 12 credits (or 120 notional hours). Thus, this module was compiled with the objective of enabling students to acquire a basic understanding of the research process in law. Since the module covers a number of aspects, we have selected only general principles governing legal research. We have, consequently, excluded many provisions governing specific research situations in order not to overwhelm you with detail. Further, many of these specific provisions are amended quite often, with the result that the relevant hard-won knowledge is subject to rapid obsolescence. By contrast, the general principles of academic legal research are fairly durable. Therefore, the time spent in mastering them should prove to be a good investment. Legal researchers with a sound knowledge of the basic principles invariably find it much easier to locate and master the specific situations as required in applied contexts. 1.3 HOW TO USE THIS GUIDE (a) Prescribed material This study guide constitutes the only prescribed source for the module. We refer hereafter to this document as the study guide. While we may refer you to additional resources, which you will source independently or obtain on the relevant links on myUnisa, the detail in this study guide is intended to guide you through the module content and ultimately achieve the above-stated learning outcomes. In essence, the study guide forms the core source of this module, and the examination (by way of a portfolio) is based on the knowledge contained in it. It is important that you take note of our instructions with regard to formative and summative assessment in Tutorial Letter 101. Also ensure that you consult Tutorial Letter 101 with regard to the assessment mechanisms and the scope of assessment used in this module. LME3701/1 (ix) Foreword (b) Structure of study guide The study guide comprises four sections: A, B, C and D. • Section A consists of a survey of general themes in legal research and refers to the theoretical framework for academic legal research. • Section B consists of twelve learning units dedicated to specific aspects to be considered when completing a research proposal (which represents the written planning for your eventual writing up of a research report in RRLLB81). Each learning unit provides the fundamental outcomes of that particular learning unit and gives practical guidelines on the content discussed in it. • Section C discusses the requisite referencing method employed in the School of Law. • Section D contains details of other essential documentation referred to throughout this guide. The study guide will be supplemented on occasion by information included in tutorial letters and on myUnisa. FIGURE 2 The study resources required for this module In summary, the study guide, supplementary tutorial letters and resources on myUnisa form the body of your study material. (c) Structure of the learning units Every learning unit in section B contains a number of learning outcomes which indicate the fundamental competencies (basic competencies) you are required to demonstrate on completion of the learning unit. (d) Use of gender We use the masculine personal pronoun throughout this study guide for no other reason than ease of reading. In addition, it is much easier to write “He is guilty” than “He/she is guilty”. (x) FOREWORD (e) Hints for studying this module Experience has taught us that there are aids that make understanding this module a little easier. We discuss these below. However, if you find that different study methods suit you better, we encourage you to continue using them. Firstly, there are a number of books on research methodology, most of which focus on particular disciplines (e.g. social research, legal research, communications research, and others). There is, however, no single source that covers research in all its related aspects. Each source addresses a range of methods, with some focusing on a particular discipline. The Unisa library has numerous general books on research and research methodology and you may wish to consult some of these if there are particular aspects of this module that you find challenging. To be successful in your studies, you must use the study guide as a starting point to guide you through your learning. However, you are also reminded to consult further tutorial letters that may be available to you for this module and to use the knowledge they contain. You must actively seek to understand the theoretical knowledge which is embedded in specific contexts that relate to the academic legal research process. As mentioned previously, you are required to read extensively to gain the necessary knowledge, develop skills, inculcate attitudes and demonstrate competencies related to legal research. Studying is an active process. Practically, this means that you are required to read to comprehend and write to summarise. You are required to create a framework comprising the four cornerstones of success (see figure 3 below) that is ultimately coherent, logical and understandable. Figure 3 summarises the four pillars of successful study. You should make full use of the 120 notional hours it will take to work actively through the module. FIGURE 3 The four cornerstones of successful studying Secondly, set yourself deadlines and stick to them. Your assessment plan and activities appear in Tutorial Letter 101. Allow yourself sufficient time to engage actively with the learning material and to prepare properly for assignments and the examination in the module. This includes making sure that we receive your assessment pieces before the due date. Many a student has tried to submit an assignment via myUnisa only to find that the platform has closed as the due date has passed – remember that time management is part of your training as a jurist. LME3701/1 (xi) Foreword Thirdly, if you are currently involved in a profession in which legal research is required, take note of the application of what you are learning in the real-life context. On the other hand, if you – like the majority of our students – are not involved in a career that brings you into contact with legal research, try to supplement your knowledge by reading real-life legal research products such as journal articles. A rule that seems abstract and illogical on paper is usually best demonstrated in practice. Fourthly, stick to the source material we prescribe. Many students collect additional sources and material from the start of the semester and convince themselves that such “data collection” means that they engage with the module content. This is not the case, however. Rather spend your time on the prescribed material. Your primary objective at this stage is to acquire a fundamental understanding of academic legal research. Our fifth tip is to endeavour to study actively. What we mean by this is to make diagrams and flow charts to enhance your understanding of certain principles and procedures. Form an overall impression of a particular learning unit before you dissect the minutiae of the matter. At the end of this module, the primary outcome is for you to form a holistic picture of the academic legal research process. This task requires you to engage actively with the study material and make effective use of your time. On the topic of assessment (assignments and examinations), take careful note of the following advice: • Please keep in mind that language is the primary tool of legal commerce. We do not consciously deduct marks for language, spelling errors or grammatical mistakes, but you will obviously want to make a favourable impression on your examiner in a module dedicated to research writing. A legal expert should be a lifelong student of language. Words are important, so if your language skills are inadequate, you must concentrate on improving them. We understand that for many of you, English is not your first language, and we do consider this when we set formative and summative assessment tasks. We do not expect you to become language experts – all we ask is that you use language clearly and directly. This point also applies to first-language speakers who respond to assignment and examination questions as if they were writing a thesis – remember brief and concise is better than extended and unintelligible. Language also relates to the manner in which you interpret a question. Read the wording of the question carefully before you begin drafting an answer. (xii) LME3701/1 1 1SECTION A LEGAL RESEARCH: GENERAL THEMES Section A of the study guide contains a general discussion of legal research and is intended to provide you with a general overview of themes which you will apply practically in section B. The learning outcomes for this module are dependent on the implementation of practical skill and thus the learning outcomes are indicated in section B of the study guide. We wish to point out that selected content in this study guide relies on the work of various authors cited in the footnotes. It further relies on the work of various academics at the College of Law at Unisa. In this regard, we specifically acknowledge Prof I Kroeze, Prof OS Sibanda, Prof A Smith, Prof F Abioye, Mrs S Smith, Prof M Schoeman and Prof MG Karels. We further acknowledge other Unisa colleagues who may have contributed to these writings but who have inadvertently not been cited as such. We do not cite Unisa College of Law staff specifically in footnotes but rather acknowledge their contributions here. LEARNING OUTCOMES Once you have studied section A, you should be able to solve problems related to a practical set of facts on any of the following matters or to discuss any of the following concepts: • identify the nature, scope and content of legal research • explain the concept of research from a practical perspective • explain the importance of research • identify and apply different types of knowledge • identify the defining characteristics of evidence-based knowledge • identify the major research designs and methods used in legal research and enumerate their practical implications • clarify terminology that is typical of research proposals in law and identify its generic meanings 1.1 INTRODUCTION TO LEGAL RESEARCH The saying “knowledge is power”2 is one you will have heard frequently in your life. Have you ever stopped to consider the meaning of the word “knowledge”? Knowledge, in the context of research, is not simply an accumulated mass of facts and figures but should rather be thought of as a database which you can access to solve problems in everyday life. In the case of legal practitioners and academic writers, their knowledge database is frequently full of legal knowledge that is used, for example, to solve a legal problem for a client or present an opinion on a specific legal matter.3 The wealth of knowledge is established during undergraduate study when lecturers lead you in 2 “Knowledge is power” is generally thought to derive from the Latin expression “ipsa scientia potestas est” which appears in Sir Francis Bacon’s Meditationes Sacrae (1597). In its modern form, the expression has been used in various writings and its exact origin cannot be confirmed. 3 Learning guide Rhodes University (Rhodes University 2014) 6. 2 SECTION A: LEGAL RESEARCH: GENERAL THEMES building a knowledge base in various areas/fields of law. You may, for example, have the foundational knowledge of the law of evidence or labour law within your legal database and are thus equipped to use that existing knowledge to answer questions and appear in court on behalf of a client. But knowledge is not static. It changes and develops into new knowledge. The question is then where does new knowledge come from? In the case of law, there are various answers. One that comes to mind immediately is judicial interpretation through case law. The courts analyse and develop the law as it stands in order to produce new theories or doctrines applicable to legal problems. The courts also use precedents which are cases decided in the past. Another source of knowledge generation is legislation. Legislative drafters use new legislation to fill gaps in the law or to create new law for specific purposes relevant to society. A third avenue for the creation of new knowledge is academic research. As a law student, you have already received the basic principles of law in various subject fields and perhaps have used research skills in research assignments during your previous years of study. These form the basic tools that will enable you to enter the workforce. However, this is not the end of your legal training and you will require advanced research skills to contribute to the creation of new knowledge in order to, for example, assist clients, research legal problems or interpret and develop law from the bench. Further, some of you may wish to pursue postgraduate degrees and perhaps enter academia, which is where academic legal research becomes particularly relevant. Research is a lifelong learning process that will enable you to evaluate existing knowledge, criticise knowledge, expand knowledge, and eventually contribute to the development of knowledge. The ability to create and, in some cases, manipulate knowledge makes you a valuable asset to employers because it demonstrates higherlevel thinking and ingenuity. The purpose of guiding you through the research process is to equip you with the skills and aptitudes necessary for creating knowledge independently. In this process, you will learn that there are different forms of knowledge, and that not all of them will assist you in completing research. Among the types of knowledge are for example:4 i. Itemised knowledge. This is the kind of knowledge often called general knowledge. It is factual. For example, is the death penalty a form of sentencing in South Africa? The answer is obviously no. This form of knowledge is useful but does not tell you much more than there is no death penalty in South Africa. Of course, if you were asked to research the historical significance of the death penalty in South African criminal procedure, the fact that it is now not used is relevant and can be linked to a variety of other facts to demonstrate your point, but it is still factual or explicit knowledge. The itemised knowledge claim would then require research in order to be extended to become evidencebased knowledge. ii. Opinion-based knowledge. This is a kind of knowledge based on the thoughts and interpretations of people. For example, if we took a survey and asked “should the death penalty be allowed in South Africa?” we would receive a variety of responses from people based on their personal experiences and thought processes. This does not, however, constitute knowledge, merely opinion. Often if opinion is questioned, it does not have any basis other than subjective thoughts and emotions. It is, in other words, not evidence-based