Doctrinal Legal Research and Legal Realism in Legal Scholarship
Legal scholarship employs a variety of methodologies to interpret and analyse the law, influencing the way legal principles are understood and applied. Two prominent and contrasting approaches are doctrinal legal research, and legal realism. Doctrinal legal research emphasises the systematic identification, interpretation, and application of legal rules, focusing on statutes, case law, and legal principles as independent and objective sources of law.
In contrast, legal realism challenges the idea that legal reasoning is purely objective, arguing that judicial decisions are influenced by social, political, and personal factors. While doctrinal legal research remains the dominant methodology in legal analysis due to its structured and predictable nature, legal realism provides critical insights into the practical application of law. This reflective response will examine both approaches, comparing their strengths and limitations, and evaluate their relevance in contemporary legal scholarship.
Doctrinal Legal Research: The Foundation of Legal Scholarship
Doctrinal legal research is the most traditional and widely practiced methodology in legal scholarship.[1] The central premise of doctrinal legal research is that law is composed of objective, neutral, and fixed rules that exist independently of social or political influences.[2] The researcher’s task is to identify, interpret, and apply these rules to resolve specific legal issues. This methodology primarily relies on primary sources such as statutes and case law, as well as secondary sources like legal commentaries, encyclopedias, and scholarly articles.[3]
The problem-based doctrinal research methodology used by practitioners to solve a specific legal problem is vast and includes the following steps: assembling relevant facts, identifying the legal issues, analysing the issues with a view to searching for the law, reading background material, locating primary material (legislation and case law), synthesizing all the issues in context, and coming to a tentative conclusion. This structured approach allows legal practitioners to systematically resolve legal problems.[4] [5]
The advantages of legal doctrine have been widely discussed throughout the literature, industry commentators note that by relying on authoritative sources, the research process is streamlined, providing legal professionals with immediate, reliable materials for decision-making, ensuring consistency in legal interpretation and enhancing the understanding of legal doctrines.[6]
Additionally, doctrinal research can often uncover gaps, ambiguities, and inconsistencies in legal frameworks, which can enable legal reform.[7] Its predictive value helps anticipate the development and application of legal principles. Legal professionals heavily rely on precedents and statutory interpretation to apply the law.[8] This structured approach strengthens legal reasoning, promoting legal certainty and stability.
Despite these advantages, doctrinal legal research has notable limitations. It is often criticised for being overly theoretical and conservative, overlooking the broader social, economic, and political contexts in which laws operate.[9] The reliance on individual interpretation can introduce subjectivity and bias.[10] Additionally, doctrinal research tends to neglect the gap between legal norms and actual social behaviour, limiting its real-world applicability.
Legal Realism: A Challenge to Formalism
Legal realism, which emerged in the early 20th century, serves as the opposite to the legal formalism of doctrinal legal research.[11] Legal realists argue that law is not an autonomous system of fixed rules but rather a dynamic system shaped by human behaviour, judicial discretion and other sociopolitical factors.[12] According to legal realists, the law is not solely found in statutes and judicial opinions but is shaped by the actions and interpretations of judges and other legal officials.[13] This methodology emphasises that legal decisions are not always the result of direct application of the law but are often influenced by external factors, including the personal views of judges, the social context of a case, and the economic conditions at the time.[14]
One of the key tenets of legal realism is the distinction between the “law in books” and the “law in action.”[15] Realists contend that while laws may appear to be clear and well-defined in legal texts, the actual application of those laws can differ significantly depending on the social and personal factors affecting the judge.[16] For instance, Jerome Frank, a renowned legal realist, argued that judges often make decisions based on an intuitive sense of right and wrong, rather than on a reasoned analysis of prior doctrine. In this view, legal reasoning is used to rationalise decisions that judges have already made, rather than guiding the decision-making process from the outset.[17]
Legal realism also examines the role of judicial discretion and how judges’ personal backgrounds, moral views, and political ideologies influence their decisions.[18] Historically, most individuals appointed to the High Court are white, from upper middle-class backgrounds, and have attended prestigious academic institutions.[19] While not every judicial member of the High Court is privileged, members tend to share a general worldview and set of personal values that are inevitably reflected in the decisions they reach. Realists argue that these personal and institutional factors shape judicial reasoning, leading to different interpretations of the law based on the judge’s worldview.[20]
A recent qualitative empirical study sought to assess whether legal formalism or legal realism could better explain High Court decision-making.[21] This study revealed that the Commonwealth wins four out of every five constitutional cases (79%), supporting the realist premise that the identity of the party before the Court, along with institutional power dynamics, can significantly influence how it rules.[22]
The Commonwealth for example relies on a team of highly skilled lawyers and expert staff, bringing together a wealth of experience and specialised knowledge to navigate complex legal matters. Furthermore, it has access to unparalleled financial resources, enabling comprehensive support in legal proceedings and ensuring robust representation throughout its legal strategy.[23] Other factors include the background and virtue of the judicial decision makers, with decisions often aligning with constitutional principles. Unsurprisingly though the Commonwealth often prevails simply due to the way the Constitution was drafted.[24] These factors strengthen the realist perspective, suggesting that legal decisions are shaped by more than just the law itself.
Legal realists argue that an abundance of rules, conventions, precedents, discretions, and ambiguous standards such as “reasonable” or “proportionate” allows for almost any outcome to be plausibly justified.[25] Other realists take a broader view and point to the sociological and institutional influences on judges, such as the types of lives they have led, including whether they attended a public versus private institution, or attended a Group of Eight university versus a regional university.[26] These factors drive the personal moral and political views of judges, which can significantly influence their decisions.
A Comparison of Doctrinal Legal Research and Legal Realism
Given the strengths and limitations of both methodologies, it is crucial to examine their relative impact on contemporary legal scholarship. Both approaches offer valuable insights into the law, but they serve different purposes and are suited to different contexts.
In the context of judicial decision making, lower courts will apply precedents and doctrinal principles previously established by higher courts. Higher courts often engage in broader legal reasoning, shaping doctrine to guide future judicial decisions and maintain consistency in the law.[27] While an individual ruling may produce an undesirable outcome in a specific case, it can serve a strategic purpose by influencing the direction of the law over time. [28]
A legal realist's primary objective is to clarify the nature of judicial decisions by focusing on how decisions are made in practice.[29] A key question has been raised by realists and ought to be considered; Do judges consult legal rules to decide cases or use those very same rules to justify their decisions.? While legal rules certainly guide judges in their decision-making, realists argue that judges may not always apply them in a purely mechanical way. Instead, they may rely on their own judgment, influenced by broader social considerations, to reach a decision and then use legal rules to rationalise or justify that outcome.[30]
Conclusion
Doctrinal legal research and legal realism offer two distinct yet interrelated perspectives on legal analysis. Doctrinal research provides the necessary structure, predictability, and legal certainty required for statutory interpretation, judicial reasoning, and the application of precedents. However, its rigid focus on legal texts risks overlooking the broader social, political, and institutional influences that shape judicial decision-making. Legal realism challenges this formalist approach by demonstrating that law is influenced by human behaviour, judicial discretion, and external socio-political factors.
While doctrinal research remains the dominant methodology, legal realism provides invaluable insights into how law operates in practice. A nuanced understanding of the law requires the integration of both methodologies, combining the precision of doctrinal analysis with the contextual awareness of legal realism. This allows legal scholars and practitioners to engage with the law in a way that is both methodologically rigorous, intellectually robust, and socially conscious.
Nadeem Majeed, Abdul Hilal and Asmat Nawaz Khan, ‘Doctrinal Research in Law: Meaning, Scope and Methodology’ (2023) 12(4) Bulletin of Business and Economics [559]. ↑
Terry Hutchinson and Nigel Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17(1) Deakin Law Review [116]. ↑
Nadeem Majeed, Abdul Hilal and Asmat Nawaz Khan (n [1]) [599]. ↑
Ibid [106]. ↑
Nadeem Majeed, Abdul Hilal and Asmat Nawaz Khan (n [1]) [599]. ↑
Rita Abhavan Ngwoke, Ibiene P Mbano and Oriaifo Helynn, ‘A Critical Appraisal of Doctrinal and Non-Doctrinal Legal Research Methodologies in Contemporary Times’ (2023) 3(1) International Journal of Civil Law and Legal Research 8, 17 [10]. ↑
Ibid [10]. ↑
Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) Melbourne University Law Review 113. ↑
Ngwoke, Mbano and Helynn (n [6]) [10]. ↑
Ngwoke, Mbano and Helynn (n [6]) [10]. ↑
Jeremy Patrick, ‘Legal Realism and Australian Constitutional Law’ (2022) 32 Journal of Judicial Administration 3 [4]. ↑
Ibid [4]. ↑
K R Kruse, ‘Getting Real About Legal Realism, New Legal Realism, and Clinical Legal Education’ (2012) 20(2) Legal Education Digest 9; (2012) 56 New York Law School Review [659]. ↑
P Ishwara Bhat, Doctrinal Legal Research as a Means of Synthesizing Facts, Thoughts, and Legal Principles (Oxford University Press, 2020) 143–168. ↑
Kruse (n [13]) [659]. ↑
Ibid. ↑
Ibid. ↑
Patrick (n [11]) [5]. ↑
Ibid [10]. ↑
Ibid. ↑
Ibid [6]. ↑
Ibid [7]. ↑
Ibid [8]. ↑
Ibid [8]. ↑
Ibid [4]. ↑
Ibid [5]. ↑
Emerson H Tiller and Frank B Cross, ‘What Is Legal Doctrine?’ (Research Paper, Northwestern University School of Law, 16 May 2005) 5 [531]. ↑
Ibid. ↑
Vitalius Tumonis, ‘Legal Realism & Judicial Decision-Making’ (2012) 19(4) Jurisprudencija: Mokslo darbu žurnalas [1378]. ↑
Ibid. ↑