Reflective thinking and the scientific method in legal research
Research Methodology · Unit I · Topic 2 of 12 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Ways of knowing
Writers on method usually begin by contrasting the scientific way of knowing with others. We accept many beliefs on authority (a teacher, a text, a court), by tradition or custom, by intuition (it seems self-evident) or by tenacity (we have always believed it). These ways of knowing are not worthless — law runs largely on authority — but none of them carries a built-in check against error. The scientific method does: it holds a belief only so long as it survives testing against evidence. Reflective thinking is the mental habit behind that method.
2. Dewey’s reflective thinking
John Dewey, in How We Think (1910), defined reflective thought as active, persistent and careful consideration of a belief, or a supposed form of knowledge, in the light of the grounds that support it and the further conclusions to which it leads. Its opposite is the uncritical acceptance of the first idea that comes to mind. Reflection begins in doubt: something does not fit, and the mind is driven to find out why.
Dewey analysed a complete act of thought into five phases:
- A felt difficulty. The thinker meets a problem — a fact that does not fit expectation, a gap, a conflict.
- Location and definition of the difficulty. The vague unease is turned into a precise question.
- Suggestion of a possible solution. A tentative explanation is formed — in research language, a hypothesis.
- Development by reasoning of the bearings of the suggestion. The thinker works out what must follow if the suggestion is true.
- Further observation and experiment leading to the acceptance or rejection of the suggestion.
Dewey stressed that the phases need not occur in this order, and that the most important habit is suspended judgment: holding the suggestion as a suggestion until it has been tested.
3. Reflective thinking as the skeleton of a research project
| Dewey’s phase | Research stage |
|---|---|
| Felt difficulty | Choice of research area; awareness of a problem |
| Definition | Statement of the research problem and objectives |
| Suggested solution | Formulation of hypothesis |
| Reasoning out implications | Research design; deciding what evidence would test it |
| Observation and test | Data collection, analysis, conclusion |
So the steps of legal research set as a short note (January 2024) are reflective thinking made formal. The note on research design takes them further.
4. Applying it to a legal problem
Suppose a researcher notices that bail is refused to many undertrials charged with minor offences who have been in custody for long periods (felt difficulty). She defines the question: are the statutory provisions for release of undertrials who have served a part of the maximum sentence actually being applied in a given district? (definition). She suggests that the provision is under-used because jail authorities and courts lack a system for identifying eligible prisoners (suggestion). If that is so, eligible prisoners should be found in large numbers in jail records, and courts should rarely have passed orders on their own motion (implications). She then examines jail registers and court records and interviews legal aid lawyers (test). The hypothesis is accepted, rejected or modified.
The same habit operates in doctrinal work. A researcher who finds two Supreme Court decisions apparently in conflict asks whether they can be distinguished, forms a suggested principle that reconciles them, works out what that principle would mean for other cases, and tests it against the whole line of authority. A judge reasoning towards a decision does much the same; Cardozo’s The Nature of the Judicial Process (1921) describes the methods of philosophy, history, custom and sociology among which a judge chooses, which is reflection on the grounds of a conclusion.
5. Induction, deduction and the hypothetico-deductive method
- Deduction reasons from a general premise to a particular conclusion. The syllogism of legal application is deductive: the rule (major premise), the facts (minor premise), the conclusion. Its truth depends on the truth of its premises.
- Induction reasons from particular observations to a general proposition. Francis Bacon championed it as the method of natural science. Extracting a principle from a series of decided cases is inductive, and so is generalising from a sample of survey respondents.
- The hypothetico-deductive method combines them: frame a hypothesis (often by induction or insight), deduce its consequences, and test them against observation.
Popper’s contribution. Karl Popper (The Logic of Scientific Discovery) argued that no number of confirming instances can prove a general proposition, but one sound counter-instance can refute it. A scientific hypothesis must therefore be falsifiable: it must say what observation would show it to be wrong. The practical lesson for the researcher is to frame hypotheses that could fail, and to look honestly for the evidence that would defeat them.
6. Steps of the scientific method
- observation and identification of a problem;
- review of existing knowledge;
- formulation of a hypothesis;
- design of a method to test it;
- collection of data;
- analysis and interpretation;
- conclusion, generalisation and report, open to verification by others.
The method has characteristic features: objectivity, verifiability, generality, predictability, and a self-correcting quality, because its conclusions are always open to revision.
7. Can law be studied scientifically?
Arguments for: the empirical side of law — how statutes work, how courts behave, who uses the legal system — can be observed, measured and tested like any social phenomenon. Galanter’s study of why repeat players tend to win in litigation, and the American Jury Project of Kalven and Zeisel, are examples.
Arguments against: law is normative. It tells us what ought to be done, and no observation can prove an “ought” (the point Hume made and Kelsen built on in separating law from fact). Legal concepts are also value-laden, and the researcher is often a participant in the system being studied. Controlled experiment is rarely possible, and when it is, it raises ethical problems.
The reconciliation most writers adopt is that legal research uses scientific method where the question is factual, analytical and interpretive method where the question is normative, and reflective thinking in both. Reflective thinking is the common ground because it asks only that beliefs be held on stated grounds and revised when the grounds fail.
How this is examined
For “Explain reflective thinking in legal research”, give Dewey’s definition and five phases, map them onto research stages in a small table, work one legal example, and end with Popper and the limits of the scientific method in law. A short note on “scientific method” or “induction and deduction” can be drawn from sections 5 and 6.
Now try the real questions: Research Methodology past question papers.