Methodology matters

This blog post is for LLM students writing their practice focussed dissertation. Every dissertation, regardless of the field, has to identify what kind of thinking and analysis the writer is employing. This is what we call “Methodology”. 

If you were doing research involving participants such as more formal quantitative and qualitative research, methodology is an earth shatteringly important part of the work; a 15,000 word dissertation may need as much as 2,500-3,000 words detailing and justifying the methods used and the theoretical methodology. But you are lucky with a law-based practice focussed dissertation which requires only paper based research. All you need to do is write a few (2-4) paragraphs in the introduction to your dissertation on your methodology. Don’t worry, I won’t say anything more about non-legal dissertations in this blog post after this point. We will focus on law all the way from here on!

Some students get confused and think the methodology is describing what research you did and how you did it. That’s a small part of it, but is not in itself enough. Methodology is more a question of what is the underlying set of ideas used in your analysis – what Laura Lammasniemi describes thus: “methodology can be described as methods and rules that are used to analyse a particular field, or a particular procedure or set of procedures. Methodology requires you to understand and write down what you are researching and how.” To use an analogy, you find your sources and then you have to read them and understand them. But how you see them and interpret them depends on the colour of the sunglasses you are wearing when you are reading through your sources. Or, if you like, the methodology is the “mindset” your critical analysis of your sources will take. 

There are a number of methodologies which lend themselves, not only to a law dissertation, but particularly one relating to legal practice. They are:

Doctrinal or “Black letter law” (sometimes known as legal method)

Socio-legal method (sometimes known as “law in action”)

Critical legal theory (which could draw from critical race theory, legal feminism, law and economics, postmodernism, post-colonial, post-structuralist or the works of particular philosophers)

Comparative

Theoretical

Marxist

Feminist/Feminist legal theory

There are other methodologies being used by legal academics which are fascinating, such as more interdisciplinary methods. However, unless you have a background in such study and your supervisor does too, I would perhaps avoid this for a practice-based dissertation. Such study is for a full research based Master’s degree. 
 

Before you start writing your dissertation, you will need to do two things:

Firstly, you need to choose a methodology which is appropriate to both the topic studied and the title you have selected. The title and the methodology have to be consistent with one another.

Secondly, you need to be able to describe the methodology, and justify why it is appropriate.

Many students are scared of doing this. But the methodology is the foundation of the entire research project and more importantly, the piece of writing which results from the research project. Without knowing the mindset you are using, you could stray into analysis which does not fit the question you have posed yourself to answer (your title). When, as children, we learn how to put together a jigsaw puzzle, we quickly learn to find the corner pieces first, and then the edge pieces and we construct the frame of the picture puzzle we are making. Then we know what our boundaries are and what the scope of what we are dealing with might be. This is similar to setting and understanding your methodology. The "shape" of a dissertation under black letter doctrinal analysis will be different from that of a socio-legal analysis.

Doctrinal or “Black letter law” is the most likely methodology you will use for a practice focussed dissertation. Mark Van Hoecke gives a helpful overview of how legal research under doctrinal methodology works, please see the reference below for further reading. You are allowed to combine doctrinal analysis with another methodology. Lammasneimi suggests a possible approach where “the early chapters often draw from blackletter analysis, whereas the final chapters focus on reform or socio-legal analysis.” Lammasneimi’s guidance on black letter law methodology in her book is well worth reading, please see 8.2 Blackletter law methodology, in her book recommended below. Terry Hutchinson’s chapter “Doctrinal research: researching the jury” in Dawn Watkins and Mandy Burton’s book recommended below is also helpful.

Socio-legal methodology is often called “law in action”. What it tries to do is examine the law not in isolation (as black letter law method does), but looking at broader issues such as politics, society, the population and how it divides into different groups, economics and/or the state of the economy, or morality. You may well think about the political influence on law, the effect of the state of the economy on the law, the effect of the law on disadvantaged groups in society, and other related questions. Please see Lammasneimi at 8.3 for guidance on what sources to use and suggestions of possible titles. Fiona Cownie and Anthony Bradney’s chapter “Socio-legal studies: A challenge to the doctrinal approach” in the Watkins and Burton book below gives some definitions of the methodology, some guidance on research methods and the featured examples of successful studies gives real food for thought. 

The other methods I featured in my list above are all important disciplines of study, which are greatly rewarding. However, I should offer a warning that they may well be beyond the scope of a small scale dissertation project focussing on professional legal practice. This is because when you use these methodologies, you will need to have a grounding of some of the major works in these fields of study. Your librarian can help you identify them. You will need to ensure you cite these works in the dissertation to justify your analysis of the law, but also feature them in your bibliography.

For guidance on Critical legal theory, please see Ian Ward’s book, recommended below. As Chris Dent says in his article which compares doctrinal, socio-legal and critical legal research: “In some  ways, this is the most difficult of the three methods because, to do it effectively, the researcher has  to be very familiar with, if not an expert in, both the area of law and the theory they want to use.” Dent’s article is very helpful in showing the differences in the three methods (he uses other people’s studies to illustrate the main elements of each method in an effective way), but he also shows how they can interplay in a single study.
A useful overview of Critical legal theory is available in Chapter 13 of Raymond Wacks’ book recommended below.

Marxist or Feminist/Feminist legal theory – you will need to have a real familiarity of the key texts in Marxism or Feminism before you use these methodologies. You will need to reference your insights into the law with the concepts and principles of these key texts. Also, they are ideological movements with different schools of thought, so you will have to select a particular one for your analysis, or if you are using more than one school of thought, you will need to be very clear about which you are using, and the differences of viewpoint of each. Vanessa Munro’s chapter “The master’s tools: a feminist approach to legal and lay decision making” in the Watkins and Burton book is a good starting point for further reading and research. In addition, Chapter 14 of Raymond Wacks’ book is an accessible introduction into Feminist theory.

Comparative – this involves comparing with other jurisdiction/s. At City Law School, we limit the amount of comparative law writing on the practice focussed LLM dissertation. I would always advise real caution before using this method. It is fraught with difficulty. Firstly, the other jurisdiction/s must be capable of valid comparison. Secondly, there is a temptation to describe the law of the other jurisdiction/s, rather than actually offering any form of comparison. Thirdly, you can quickly lose control of the dissertation, which should focus on this jurisdiction. Without having studied this method first, I would advise against using it for a practice focussed dissertation. 

Further reading

Laura Lammasniemi, Law Dissertations: A Step-By-Step Guide (Routledge 2018)

Mark Van Hoecke, Chapter 1. Legal Doctrine: Which Method(s) for What Kind of Discipline? In Van Hoecke M (ed) Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Hart Publishing) (2011)

Ian Ward, Introduction to Critical Legal Theory, 2^nd edition, 2004 Cavendish

Dawn Watkins and Mandy Burton, Research Methods In Law, 2^nd edition, 2018, Routledge

Chris Dent, A Law Student-Oriented Taxonomy for Research, in Law Review Wellington, 2017 

Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (5th edn): Chapter 13 Critical Legal Theory, and Chapter 14 Feminist Theory.