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Research Methodology Essays

Research Methodology
Section A
Question 1
The purpose of Francis and McDonald’s research is to identify the experiences of part-time law students in light of their general biographical background and understanding their opinions.[1] It fundamentally concentrates on perceptions of part-time law students about their experiences within higher education.  There research was based on the paradigm set by Universities UK, which carried out an in-depth research of part-time students in higher education in terms of equivalence between full-time and part-time students and concluded that part-time students are marginalized by administrators and researchers. [2] This particular research focuses on part-time law students, and contends that part-time law students face specific disadvantages which distinguish them as a group which is largely ignored by universities.[3]
Francis and Macdonald used “methodological triangulation” and “data triangulation” as described by Hoyle[4] , as their research used different strategies within a research method.  They used quantitative survey instrument– the questionnaire, there were 255 responses. This questionnaire used a variety of questions formats to get as complete a picture as possible.  For instance, they used Likert scale, ranking, true and false, multiple choice and free text where necessary.  This quantitative analysis was supplanted by qualitative instrument in shape of two focus groups with 20 students each.  These focus groups were semi-structured and according to the authors helped in “clarifying” emerging arguments from the questionnaires[5].  The authors argue that data between the quantitative and qualitative studies cannot be triangulated but qualitative research did provide a more in-depth analysis as Bryman calls qualitative data “rich and deep”.[6] The authors admit that the focus groups provided insights about the experiences of part-time law students.
Based on Bryman and Silverman’s discussions about quantitative and qualitative methodology, it appears that the authors were not very clear about their quantitative data set. [7]  They used multiple formats in the survey questionnaire and throughout the article referred to detailed responses by questionnaire respondents. It can be argued that the questionnaire was more qualitative than quantitative as described by Silverman.[8]  Since the purpose and the arguments of Francis and McDonald don’t follow the rules of quantitative researchers, who don’t jump from correlations to causal statements.[9] In addition it was also observed by this student that the way the questionnaire survey was administered raises many questions. Because of financial constraints the survey was not administered by them directly to the respondents, as a result the number of respondents and the answers to the questions depended mainly on the discretion of participating institutions and how they presented it to the students.

Question 2
Francis and McDonald’s study of experiences of part-time law students reveals several issues that these students experience as part of the part-time program. According to the authors their study revealed that equivalency between full-time and part-time curriculum was a myth and there were some fundamental differences between the two types of education.  This was further enhanced because higher education in UK is highly stratified. Moreover there is no explicit policy to deal with the differences present between full-time and part-time students.  There is a failure on part of the administrators to accept that there is a difference which needs to be addressed.[10]
Another important issue is the drop-out rate of part-time students.  Law students tend to drop out of their educational programs more.  This study found that a remarkable number of students dropped out of these programs, members of focus groups observed this. There are several underlying causes for high dropout rate. The major issue is lack of responsiveness by the administrator and teachers, who show lack of flexibility. In addition there is a general perception by the respondents that they are second-class citizens as compared to full-timers.  The authors believe that this high dropout rate is a result of their negative experience as part-time students.[11]
A major finding of this research is that for part-time students it is extremely difficult to manage their work and family while enrolled as part-time students. There are several costs associated for part-timers.  Thus these students have to deal with emotional stressors and are marginalised not only in their education but at work and within their social culture.  They are also pressurised because of high financial costs of tuition fee as part-timers don’t receive any leeway.[12]
In terms of their own perceptions of their place in the law schools, it emerges from the research that the students have a very strong feeling of being marginalised within the educational system and being treated as not being good enough for law education.  This became more apparent because the part-timers who were part of the daytime programs saw no specific difference between full-time and part-time students. Minorities, women and social background further led to marginalisation. In addition formal equivalence gave the part-timers further disadvantage.  This is further worsened by the institutions to integrate these students. It was rather the personality of the students, that they resisted marginalisation through their own efforts.[13]
In terms of developing their identities and access to the legal profession, Francis and McDonald found that those part-timers who were already associated with legal profession had a decided advantage and more opportunity compared to those with no advantage.  Secondly, most of the students were studying to enter the legal profession.  But they faced an uphill task not only in terms of their social mobility and identity but also in acquiring cultural capital as they do not have opportunities like full-timers so even before entering the profession they faced marginalisation. [14]
The article is justified through its research when it indicates that the part-timers face complex and multifaceted disadvantages which make their success in legal profession very difficult. However those with a background of legal profession have a decided advantage.  According to the authors, educational institutions need to make a more integrated system which is more flexible and provides students with more opportunities to succeed in the legal profession.

Question 3
Francis and McDonald’s article does not present a political argument but has different dimensions and presumptions which are political in nature. The authors use the medium of this research to put forward empirical evidence and commentary on the present social structures in UK keeping in mind the focus on Part-time law students.
First of all the article is based on the premise of UK Universities research which indicates that generally part-time students face certain disadvantages. They seek to narrow down their focus on part-time law students and their experiences and perceptions about higher education particularly part-time education.
The sample of respondents —both focus groups and the survey—- indicate that a majority of them belong to marginalised groups like, women, ethnic minorities and belonging to lower income sections or having working class background as opposed to middleclass background.[15]  Secondly this paper highlights significant differences between the new and old educational institutions.[16] They detail the relationships between social background and place of education and how that influences prospects part-time students in terms of opportunities in their carriers. The paper also indicates that just by attending evening school the possibilities of opportunities diminish as the students are not able to avail additional cultural and career capital which is available for full-timers.[17] Moreover there is a sense of marginalisation and a feeling of alienation among the students who consider themselves as outsiders.  The authors also point out the part-timers not fitting the mould of middle classes, and full timers who generally come from that background, therefore it is difficult for them to assimilate and integrate into the system which considers them an outsider.[18] They argue that there is a need to give equal opportunity these part-time students by showing greater institutional flexibility, access to administration and books and also providing social opportunities to extracurricular activities.[19]
According to Hammersley, researchers have the power to put across their political argument as Francis and McDonald have done. [20]  From his perspective they have used this article to present their views and concentrated on the disadvantages of part-time students. At the same time they do not serve any dominant group, in addition their arguments have been justified through empirical research. Thus according to Hammersley in the social research context research cannot be completely neutral, however the power to influence is very limited.[21]
He also accepts that any kind of inquiry has presuppositions which are not tested; however there is no degree of certainty because society is dynamic and internal and external impetuses keep on changing the value system. Thus social research is not an exact science; rather it is more of a discourse on the ongoing social conflict within a society.  At the same time he argues that research should not be politically motivated or political though research can have political values as in the case of this particular article.[22]  Francis and McDonald may have certain political values on the basis of which they have analysed the experiences of part-time law students; however their article works towards acquisition of knowledge rather than making a political statement.

Question 4
Carolyn Hoyle in her contribution takes a very practical view of ethics in research. In her view although intentions of the researcher may been to carry out an ethically sound research, however, when dealing with certain issues which are socially relevant if the need arises researchers to tend to bend their rules.[23] She gives detailed account instances where she did not follow the rules very strictly but it was a necessary evil because of the importance of her research. She invites others to tell the truth about their research because in her view researcher face different situations and they do respond to these situations in a different manner. However this doesn’t in any way mean resorting to falsehood, on the contrary she believes that it is important to base one’s argument on solid data.
In addition it is important that the research conducted is for general good and no harm is intended towards the respondents. It is also important to have informed consent of the respondents, they being aware of the objectives of the research and the information’s usage and application. It is also important to note that all the participants become part of the research willingly, knowing the implications of a research. It is also important to maintain anonymity of the respondents unless specific permission is taken to make their identities public. Hoyle although maintained the anonymity of the respondents, but misrepresented or twisted the truth where necessary because it was difficult to interview subjects in her study.[24]
In the case of the study carried out by Francis and McDonald, there were places where some ethical issues might have arisen. For example to maintain the anonymity of the focus group participants, the researchers named the each university as A and B and gave the participants numbers so they could respond freely without feeling under pressure. Similarly in the quantitative survey they again assigned number to the respondents. There could have also been an ethical problem is the authors had wanted all the students to respond to the survey making it mandatory for all students to respond.  This would have meant unwilling respondents who had been forced to reply under duress. This would have seriously called into question the ethical validity and reliability of research.[25]
All ethical issues in any research have to deal with some basic principles including making sure research is carried out for general good, that its result would not be harmful, physically or emotionally in any way. That all the participants new the objectives of the study and had given their consent not just orally but in writing. It was the responsibility of the researchers to keep the identities of the respondents, whether part of the survey or focus group completely confidential.  These are specific measures which ensure that a research is ethically sound.

Section B
Question 1
Zweigert and Kotz describe the purpose of legal research very broadly, as acquisition of knowledge.[26]  Richard Hyland, on the other hand, describes comparative law as an area of inquiry where national, local and religious systems are discussed in terms of their style and content and also trying to find similarities and differences between them.[27] Zweigert and Kotz have discussed that in the past there was very little trend to study laws of other countries as this practice was not considered to be nationalistic, there is no sense of legal unity, rather practitioners did not consider laws of other countries, and did not consider the exercise useful enough. They further argue that different systems in the world can offer a greater assortment of solutions, which a single system can never offer. Comparative legal research allows jurists, researchers and law experts to explore a wider array of solutions and gives him or her an opportunity to find a better solution than they could find locally.[28]
Hyland cites Zweigert and Kotz who classify comparative research into macro-comparison, which deals with general questions like different types of codifications and development of law and decision mechanism of courts. While micro-comparison deals with more specific legal issues and how they are solved. Hyland also divides comparative legal research into descriptive comparison which discusses a specific style of a foreign legal system, while theoretical comparison deal with similarities and differences in the legal systems and applied comparison tries to identify the best standard for a social or economic situation.
Hyland further elaborates about how comparative legal research is considered in different circles. According to some since it is not a separate field of law, it should simply be considered as a method by which different laws can be studies. While others contend that it is the only way that study of law can become a science.  Comparative legal research tries to find similarities and differences between different legal systems, as in the case of Pünder, who compares delegation of legislation to the executive in three countries.[29]  Not only does it give rise to discussion internationally but it also minimises national prejudices, and helps researchers and jurists to understand different cultures and value systems.  It is also very important for law reformation in developing countries and development of one’s own system. [30] Zweigert and Kotz give describe various uses of comparative legal research:[31]
·         It can help the legislature
·         It can be used as an instrument of construction
·         It can be become an essential part of law school curriculum
·         It can help in a systematic unification of law
·         Development of common law  for Europe

Question 2

Comparative law tries to evaluate laws of different countries in a way that it is able to understand similarities and differences between different laws and legal frameworks. Historically most of the research that has been carried out has been under the framework of presumption of similarities, where researchers tried to find and identify a set of ideas which are common to the different legal systems. Initially universalism was the major approach which sought to link all the laws were derived from Christianity, Roman framework and natural law theories.[32]  They failed to consider the differences in the comparative process. In addition they considered any divergence to be an accident rather than a cultural distinction. The functionalists on the other hand were realist in their belief that law was used as an agent of changing human behaviour. According to Hyland the functionalist ignores the differences and tries to find practical consequences of norms.[33] They also believe that all legal systems tend to resolve practical questions in the same way, thus giving almost similar solution in spite of the fact that there are major differences in their structure and development. This philosophy also gives rise to the belief that legal and extra-legal regulations fulfil the same criteria.[34]
On the other hand differences between systems have been studied, by categorising different laws in families, this way differences between a few families can be studied as opposed to differences between many individual legal systems.  For this type of differentiations, different scholars have classified laws into distinct families. This allows a simultaneous comparison of similarities and difference of various families.  However one of the major limitations of this comparative technique is that it is limited private law and fails to explore the uniqueness of each individual law of a country. Weberian approach of ideal types shows different systems at different levels of this ideal; he differentiates legal systems which are oriented towards formal laws to those concerned with results.  His view also incorporates the political factors which uniquely influence development of certain laws. However Hyland is of the view that difference theory is the best way to comparative law, because it presumes that each legal system is unique and at no level the differences can disappear.[35]
In case of Pünder’s article, the author is concerned with three countries. He states that the delegation of statutes is common in all three countries, Germany, the UK and USA; however, there are certain differences in how this delegation occurs. Therefore the author is more concerned with exploring the unique differences visible in all three legal systems, to understand how delegating of power is done uniquely in all three cases.[36] Therefore even before comparing the three systems the author is interested in pointing out the differences and to see which of the three systems is more democratically viable. Therefore he approaches comparative law from the perspective where differences are explored.

Question 3
Pünder in his introduction has elaborated the reasons behind he has tried to carry out a comparative study of delegation of power by the legislative to the executive.  At present legal systems are dynamic structures which keep on changing and different branches of the government also have changing roles in this situation. Western democracies have evolved tremendously and have graduated from the stage where separation of power was necessary, but with the overall system becoming democratic some grey areas have appeared regarding legislative authority. Pünder in his article contends that increasingly law in most of the countries are being made by the executive brand of power rather than the legislative.  The demands of modern states have led to most of the powers being shifted from the lawmaking legislatures to the administrators. As a result constitutional and administrative laws have to control and channelize this redistribution of authority. It is understood that this is a departure from the conventional separation of powers, however at the same time they have to ensure that these delegations have legal backing of the system.  The focus of Pünder’s analysis is on laws that govern subordinate legislation in each country. According to him purists even now find it difficult to accept this mixing of powers, and believe in separation of power of each branch, however, executive and administrative institutions have greater need to make laws. In the present ever evolving environment legal experts have acknowledged the reality that it is not possible for slow-moving machinery of the legislature to govern and make laws on its own. As a result executive lawmaking powers have now become a custom. Thus according to the author subordinate legislation has become increasingly relevant as bulk of laws is passed through these bodies. The executive and administrative authority has increased because executive branch also has democratic authority. According to Pünder there is need to ensure democratic legitimacy of this subordinate legislation. There is a need for democratic legitimacy as an absence of democratic process would mean use of coercion. He goes on to say that democracy has its roots in people directly or indirectly—through representatives, subordinate legislation takes place. [37]
The author has chosen to analyse laws that govern subordinate legislation in Germany, Britain and the US to understand which is the most effective and democratic way of managing subordinate legislation. Therefore he has limited his study to the diminishing role of the legislative in each country at the same time he compares how subordinate legislation takes place and whether it is democratic in its working.

Question 4
The author has analysed the process of democratic legitimation under three heads, comparing and contrasting the three legal systems:
A. Democratic legitimation by parliamentary predetermination of executive rulemaking process: the differences all three systems are apparent, though the German system more dependent on the parliament as the legislating body, while in the US most of subordinate legislation is carried out by autonomous politically independent bodies. The author believes that in spite of all the shortcomings the German legal structure which gives the legislature the duty and stops it from delegating directly to administrative body is much more effective than either the British or the American system. Because he contends that in most cases the British and the American legislatures are unwilling to make difficult decisions. Even though the German system is superior in this respect but there is degree of in-flexibility visible which can be adjusting article 80 of the basic law.[38]
B. Democratic legitimation by parliamentary participation in the executive rulemaking process:  in terms of parliamentary participation, the American system does not encourage parliamentary participation and has even ruled out congressional veto, giving autonomous entities freedom to act. This has been criticised by different commentators. On the other hand the German legislature has the right to participate in the executive rulemaking process. According to Pünder this gives the legislature political authority to executive rule and an overseeing democratic legitimation exist.  This can be applied in the British system as well and can successfully deal with objections against Henry VII clauses. Realistically speaking, the German and British systems are constrained by limited information and time for debate.[39]
C: Democratic legitimation by public participation in the executive rulemaking process:  in terms of public participation in executive rule-making process, it is the American system which is ideal in terms of public participation, because the general public can participate directly in executive rulemaking. Because its executive bodies are completely autonomous they are democratised by public participation. According to Pünder here the political and legal process begins with empowering legislation. In the case of Germany and the UK the process is very vague and there are no requirements for any type of public participation, it is the American system which is realistic in its approach as it devolves the power to the public through direct participation instead of empowering the legislatures.  This gives the general public a chance to participate more than just in elections. This also ensures transparency which is not evident in the German system. On the other hand in terms of time and financial costs, the American system may not be practical but it does ensure public participation.[40]
When all three legitimation are considered in terms of power of legislature to oversee executive rulemaking, German system is superior to both the British and American systems, however in democratising and making the system more transparent with greater public participation the American system is superior as it gives the right to choose and formulate policy directly to the public rather than the legislature. The author favours the American system which he believes is better than leaving rulemaking authority to the discretion of a few legislatures. However in my view the system in Germany and Britain which encourages legislative authority and participation in rule-making is much more effective, as the role of Congress in the US diminishes significantly because of its receding authority.

Bibliography
Bryman, A. ‘The Debate about Quantitative and Qualitative Research’, in Quantity and Quality in Social Research, ed. A. Bryman. Routledge, London 1998.
Francis, A.M. & McDonald I.W. (2009) ‘After Dark and Out in the Cold: Part-time Law Students and the myth of “equivalency”’, Journal of Law and Society, Vol. 36  Iss. 2, 2009, pp. 220-247.
Hammersley, M., ‘Is Social Research Political?’ , in The Politics of Social Research, ed.  M. Hammersley. Sage, London, 1995.
Hoyle, C. ‘Ethical and Methodological Issues in Researching Domestic Violence’, in Doing Research on Crime and Justice, ed. R King and E. Wincup. Oxford University Press, Oxford, 2000.
Hyland R., ‘Comparative Law’, in A comparison to Philosophy of Law and Legal Theory, ed. D. Patterson. Blackwell, 1999.
Pünder, H. ‘Democratic Legitimation Of Delegated Legislation—A Comparative View on the American, British and German Law’, International and Comparative Law Quarterly , Vol.  58, 2009, pp. 353-378.
Silverman, D. ‘Quantitative/Qualitative’, in Core Sociological Dichotomies, ed. C. Jenks. Sage, London, 1998.
Universities of UK Policy Briefing: Part-time Students in higher education- supporting higher level skills and lifelong learning (2006), available at:<www.universitiesuk.ac.uk/Publications/Documents/policybriefing0.pdf>
Zweigert, K and H. Kotz.  An Introduction to Comparative Law Oxford University Press, Oxford, 1998.

[1] Andrew M. Francis, and Ian W. McDonald, () ‘After Dark and Out in the Cold: Part-time Law Students and the myth of “equivalency”’, Journal of Law and Society, Vol. 36  Iss. 2, 2009, 223
[2] Universities of UK Policy Briefing: Part-time Students in higher education- supporting higher level skills and lifelong learning (2006), available at:www.universitiesuk.ac.uk/Publications/Documents/policybriefing0.pdf , cited in Francis and McDonald (n.1) 221

[3] Francis and McDonald (n.1) 222
[4] Carolyn Hoyle, ‘Ethical and Methodological Issues in Researching Domestic Violence’, in Doing Research on Crime and Justice, ed. R King and E. Wincup. Oxford University Press, Oxford, 2000.p. 398.
[5] Francis and McDonald (n.1) 223
[6] Alan Bryman, ‘The Debate about Quantitative and Qualitative Research’, in Quantity and Quality in Social Research, ed. A. Bryman. Routledge, 1998.p. 103
[7] Ibid. and David Silverman, ‘Quantitative/Qualitative’, in Core Sociological Dichotomies, ed. C. Jenks. Sage, London, 1998.

[8] Silverman (n.7) 85
[9] Ibid. 81
[10] Francis and McDonald (n.1) 228-229
[11] Ibid. 230-231
[12] Francis and McDonald (n.1) 232
[13] Ibid. 233
[14] Ibid. 242
[15] Francis and McDonald (n.1) 225
[16] Ibid. 228
[17] Francis and McDonald (n.1) 236-7
[18] Ibid. 238
[19] Ibid. 242-3
[20] Martyn Hammersley, ‘Is Social Research Political?’, in The Politics of Social Research, ed.  M. Hammersley. Sage, London, 1995.p. 45
[21] Ibid. 47
[22]Hammersley (n. 20) 51
[23] Hoyle (n.4) 401
[24] Hoyle (n.4 ) 400
[25] Francis and McDonald (n.1) 223
[26] Konrad  Zweigert, and Hein Kotz, An Introduction to Comparative Law Oxford University Press, Oxford, 1998. P. 15
[27] Richard Hyland, ‘Comparative Law’, in A comparison to Philosophy of Law and Legal Theory, ed. D. Patterson. Blackwell, 1999.p. 185
[28] Zweigert and Kotz (n. 25) 15
[29] Hermann Pünder, ‘ Democratic Legitimation Of Delegated Legislation—A Comparative View on the American, British and German Law’, International and Comparative Law Quarterly , Vol.  58, 2009, pp. 353-378.
[30] Zweigert and Kotz (n. 25)16
[31] Ibid. 16
[32] Hyland (n. 26) 186
[33] Ibid. 187-190
[34] Ibid.  190
[35] Hyland  (n. 26) 193
[36] Pünder (n.28) 357
[37] Pünder (n.28) 356
[38] Pünder (n.28) 361-64
[39]Ibid.  367-69
[40] Pünder (n.28) 374-77

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