On the Issue of Classifying Legal Research

Osipov Mikhail Yur'evich ORCID: 0000-0002-6982-3668 PhD in Law Senior Scientific Associate, International Police Academy of All-Russian Police Association 300026, Russia, Tul'skaya oblast', g. Tula, ul. Ryazanskaya, 1 osipov11789@yandex.ru Other publications by this author

Introduction

One of the urgent problems facing modern legal science is the classification of scientific research in the field of jurisprudence. However, little attention is paid to this problem in the domestic field of legal science ^{[1] [17] [18]}. Meanwhile, this problem has received comprehensive coverage in foreign legal science ^{[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13]}.

This work considers the following aspects related to the classification of scientific and legal research: a) the classification of scientific research into applied criteria, performed by professional lawyers and fundamental, performed by the academic community, and b) interdisciplinary and doctrinal ^{[2, p.671]}. By this classification, such types of research are distinguished as a) research in the field of legal theory, b) research in the field of sociology of law, c) critical legal research, d) research in the field of law and economics, c) research of customary law, including research on the peculiarities of African and African American legal customs ^{[2, p.671]}.

But any research has its methodology, while the specifics of a particular legal study affect the choice of a particular research methodology, as noted in the following works ^{[3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13]}. Consequently, researchers of a particular legal problem may be faced with the question of which a particular study belongs to, as the choice of methodology for a particular study largely depends on the study's attribution to a particular type. To choose the right methodology for a particular legal study and correctly assess its results, it is necessary to correctly determine the type of a particular study. To correctly determine the type of a particular legal study, it is necessary to know the criteria for their classification. But for the subject of legal research to understand and clearly determine which type a particular legal study belongs to, it is necessary to have clear criteria for classifying research developed by legal science, its methodology, as well as criteria that allow you to correlate certain types of legal research with each other. Therefore, the requirements for classifying scientific and legal research are relevant.

Research methodology

The main problem to be investigated in relation to our research subject is the issue of classification of legal studies.

To solve this problem, clear criteria for the classification of legal research should be identified, making it possible to distinguish one study from another and one type of research from another concerning legal research.

The research methods used to obtain the results described in this article include the following: analysis, synthesis, induction, deduction, abstraction, generalization, and modeling. In the course of this study, the following aspects of this problem were considered: a) the main criteria for the classification of legal research that exist in legal science are highlighted, b) a justification is given for the need to supplement the existing criteria for classifying legal research by dividing all types of legal research into "positive" and critical, and c) criteria for the relationship between "positive" and "critical" legal research are identified.

The results of the study

2.1. Criteria for the classification of legal research

What criteria can be distinguished in domestic legal science in relation to certain scientific research?

In our opinion, they can be divided into several groups:

1. Legislative criteria – criteria of legal research, fixed in the legislation.

2. Doctrinal criteria – criteria of legal research developed by the scientific community or individual scientists.

Let's look at them in more detail.

The Federal Law on Science and State Scientific and Technical Policy dated 08/23/1996 No. 127–FZ (ed. Dated 07/24/2023) "On Science and State Scientific and Technical Policy" identifies the following types of scientific research:

"Fundamental scientific research; applied scientific research; exploratory scientific research." These criteria also apply to legal science, which is a part of science.

At the same time, in our opinion, fundamental legal research includes research on the main categories and concepts of jurisprudence—that is, research in the general theory of law that does not have direct access to practice. Studies, the results of which are presented in the works ^{[16] [17] [22] [23]}, are examples of such studies.

Applied scientific research can include scientific legal research, which is devoted to solving specific applied problems in the field of jurisprudence. Studies whose results are presented in the works may be examples of such research ^{[21] [22] [23]}.

Exploratory scientific research in the field of jurisprudence should include research on the methodology of legal research ^{[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18]}.

Also, among the legislative criteria for the classification of legal research are the criteria established by the Nomenclature of the specialty of researchers (Order of the Ministry of Education and Science of the Russian Federation dated 02/24/2021 N 118 (ed. dated 07/24/2023) "On the approval of the nomenclature of scientific specialties for which academic degrees are awarded, and amendments to the Regulation on the Council for the Defense of dissertations for the degree of Candidate of Sciences, for the degree of Doctor of Sciences, approved by the order of the Ministry of Education and Science of the Russian Federation dated November 10, 2017 N 1093" (Registered with the Ministry of Justice of the Russian Federation on 04/06/2021 N 62998) and the corresponding passports of scientific specialties.

The doctrinal criteria for the classification of legal research include what allows us to divide legal research into a) interdisciplinary and disciplinary ^[19], depending on the characteristics of the problem field of a particular study; b) empirical, theoretical and mixed, depending on the level of scientific knowledge and the research methods used by it ^{[1] [16] [17]}; and c) for general theoretical, sectoral and special legal studies, depending on the characteristics of the object and subject of the study. In our opinion, this should be supplemented by such classifications as the division of all legal research into: "positive legal research"—the direct object of which is the legal reality itself in the form of a set of legal phenomena—and "critical legal research," the object of which are various concepts, hypotheses, theories, teachings, doctrines.

2.2. Justification of the need to highlight positive and critical legal research

The question may arise: why is it necessary to distinguish between "positive" and "critical" legal research? Why can't we admit that in any legal research, there is a criticism of existing approaches to the study of legal reality? The thing is, there may be studies that are devoted to an absolutely new problem of legal science that has not been previously studied and in which there is not and cannot be criticism of existing approaches to this problem due to their absence and the results of which consist in the discovery of a new legal phenomenon that researchers in the field of jurisprudence have not previously studied. For these reasons, there can be no criticism of it due to the lack of any research that affects this issue in one way or another. But this is a relatively rare case in the history of world and domestic jurisprudence. Much more often, there are studies whose results are expressed in criticism of existing theories, concepts, and doctrines due to their inadequacy of legal reality. In contrast, any new aspects of legal phenomena or new patterns still need to be shown. ^{[31] [32] [33]}. The question arises as to what kind of research such studies, which are devoted to the analysis of concepts, teachings, and doctrines in the field of jurisprudence, should be attributed. These reflections led the author to the need to highlight "positive" and "critical" legal studies that have their own specific research objects, which will be discussed below.

2.3. Features of "positive" legal studies and their evaluation

In our opinion, the object of "positive legal research" is the relevant components and elements of "legal reality," by which the author of this article understands the totality of all interrelated and interacting legal phenomena, as well as other social phenomena with a legal side, for example, the legal side of investment or innovation processes ^{[21] [22]} or legal aspects of environmental protection ^[23]. At the same time, according to the author of this article, concepts, theories, teachings, and doctrines existing in legal science cannot act as objects of "positive legal research" because, in our opinion, they are the subject of another type of legal research: "critical" legal research.

The subject of "positive legal research" is the patterns of formation, development, and functioning of certain legal phenomena or the legal side of a particular social phenomenon," which, among other things, are reflected in the signs of a specific concept" ^{[1] [16] [17] [20] [22] [23] [24]}. The objectives of positive legal research, in our opinion, can be a) the discovery of new patterns of formation, development, and functioning of legal phenomena; b) the identification of defects in the legal regulation of certain spheres of society ^{[24] [25] [26]}; and c) the development of sound proposals for improving legal regulation in certain spheres of life and society.

Accordingly, the criteria for evaluating "positive" legal research are the degree of achievement of the research goals and the novelty of the research results, which can be expressed in: "a) in the discovery of new patterns, formation, development, functioning of legal phenomena; b) in the identification of defects in the legal regulation of certain spheres of society; c) in the development of sound proposals for improving legal regulation in various spheres of society" ^[27]; the degree of reliability of the conclusions obtained during the legal research is also subject to assessment. That is, to evaluate "positive legal research," it is enough to use the usual criteria for evaluating works and scientific articles accepted in the legal community.

Next, let's look at the features of "critical" legal research.

2.4. Features of "critical" legal research and evaluation of their results.

Unlike "positive" legal research, the object of "critical" legal research is not legal reality but hypotheses, concepts, doctrines, theories, and teachings outlined in the legal literature—in other words, the results of other authors' thinking.

In our opinion, the subject of "critical" legal research is not only the patterns of formation, development, and functioning of theories, concepts, teachings, and doctrines existing in legal science but also a critical analysis of specific hypotheses, concepts, doctrines, theories, teachings—in other words, those scientific results that are set out in the scientific literature. ^{[1] [16] [28] [29]}. At the same time, these results presented in the scientific literature act as the theoretical and empirical basis of a particular study since these results are usually theoretical in nature, but in a "critical" legal analysis, they are released as an empirical basis for its conduct.

In our opinion, the purpose of "critical" legal research is not to discover new patterns of formation, development, and functioning of certain legal phenomena. It consists in determining to what extent certain results obtained by other researchers, which are reflected in concepts, theories, teachings, and doctrines existing in legal science, adequately describe and explain the legal reality, as well as how well-founded the proposals for improving legal regulation in various spheres of society, and what possible consequences they can lead to.

Accordingly, the criteria for evaluating the results of a "critical" legal study cannot be identical to the requirements for assessing a "positive" legal analysis for the following reasons.

1. In our opinion, there is no classical scientific novelty in "critical" legal research in the form of "the" discovery of new patterns, the formation, development, and functioning of legal phenomena; b) in identifying defects in the legal regulation of certain spheres of society; c) in the development of sound proposals for improving legal regulation in various spheres of society ^[2] as "the purpose of "critical" legal research, in our opinion, is not to do this, but to determine the correspondence of existing concepts, teachings, doctrines to reality, to identify their strengths and weaknesses.

2. In our opinion, a "critical" legal study will necessarily include a so-called "compilation" of works being critically analyzed as these works and excerpts from them will form this study's theoretical and empirical basis.

3. In our opinion, "critical" legal research may not contain its own definitions of those concepts that were set out in the works being critically analyzed because, as already shown above, the purpose of "critical" legal research is not to search for new patterns of formation, development, and functioning of legal phenomena, some of which are reflected in the signs of certain legal concepts ^{[1] [16] [17]}.

4. In a "critical" legal study, a conclusion must be drawn about the applicability or inapplicability and the degree of applicability of certain analyzed to reality.

5. When evaluating the scientific novelty of "critical legal research," first, whether a critical analysis of the theoretical propositions considered in this scientific study that constitute the object of research has been carried out earlier or not, and second, whether the conclusions obtained during the "critical" legal research are new or not. If the previously indicated provisions have already been the object of critical analysis, what is the difference between the researcher's and previously made conclusions?

The studies presented in the papers can serve as examples of this kind of research ^{[31] [32] [33]}. For, in our opinion, the features and results of these studies, which were outlined in ^{[31] [32] [33]}, do not allow them to be classified as "positive" legal research due to the criteria of "positive" legal research that were indicated above.

Such differences between "critical legal research" and "positive" legal research will allow a more competent approach to evaluating the results of each type of legal research and avoid the following errors caused by an incorrect assessment of the results of these studies.

2.5. Possible errors caused by incorrect definition of the type of legal research: "positive or critical" and ways to prevent them.

Possible errors caused by incorrect definitions of the types of legal research include the following errors:

1. Errors related to the incorrect definition of the object and subject of research, for example, in a study belonging to "critical research," the patterns of formation, development, and functioning of legal reality, its components and elements are indicated as the subject of research, and not a critical analysis of certain theoretical positions, and vice versa. The study's critical analysis of certain theoretical propositions related to the type of "positive" legal research is indicated.

2. Errors related to the incorrect definition of the objectives of legal research. For example, in "positive legal research," the objectives of the research are to verify the validity of the conclusions of other scientists and their concepts regarding a particular subject of legal reality, understood as a set of all interrelated and interacting legal phenomena, as well as social phenomena with a legal side, which in our opinion is the goal of critical legal research. Conversely, "critical legal research" aims to identify any patterns. However, the identification and analysis of patterns of objects of legal reality form the basis of "positive legal research."

3. Errors related to the incorrect presentation of research results. A "positive" legal study critically analyzes specific scientific provisions. Still, the patterns that make up the subject are not disclosed, nor is the author's position regarding specific provisions expressed in the legal literature in "critical" legal studies disclosed.

These errors relate to the mistakes by the researcher related to one or another type specified above.

The reviewer's mistakes in the implementation of critical legal research include the application of criteria for evaluating "critical legal research" to "positive" legal research and vice versa, which can lead to unjustified deviations in the publication of works containing research results and in the publication of weak works that do not meet the criteria of scientific research, as noted in the specialized literature ^{[30] [31] [32]}. In our opinion, to prevent the occurrence of these errors, it is necessary to first clearly determine the type of research being conducted, whether it will be "positive," critical, or mixed, combining the signs of both studies. Then based on the characteristics of this study, it is necessary to proceed to the presentation of its results, according to the characteristics of one type or another scientific research, and accordingly, reviewers, first of all, based on the peculiarity of the subject, the research outlined in the abstract, determine the correct type of research: whether this legal research is "positive" or "critical" and evaluate its results according to the rules that are characteristic of a particular type of research.

Let's summarize the results.

Conclusion

During the study, the following was established:

1. It is proposed to supplement the existing legal research classification by dividing it into "positive" and critical. The need to classify legal research into "positive and critical" is due to the presence of works that explore not objective legal reality but concepts, teachings, and doctrines in legal science, the content of which is known to legal scholars and, therefore, cannot have the classical scientific novelty that is characteristic of "positive legal research."

2. The criteria for determining the ratio of "positive" and "critical" legal research are the features of the object, subject, goals, and scientific research results.

3. There is not and cannot be a classical scientific novelty in "critical" legal research in the form of "the discovery of new patterns, the formation, development, functioning of legal phenomena; b) in identifying defects in the legal regulation of certain spheres of society; c) in the development of sound proposals for improving legal regulation in certain areas in other spheres of society's life," as the purpose of "critical" legal research does not consist in this, but consists in the very fact of conducting research on a particular scientific theory, concept or doctrine from a specific methodological position, from which such an analysis has not been carried out before, as well as in using new arguments that support the position of the author(s) critical legal research regarding a particular theory, concept, or doctrine in legal science. Therefore, due to these differences in scientific novelty, there should be special rules for evaluating "positive" and "critical" legal research.

4. The following errors can be attributed to the number of possible errors caused by an incorrect definition of the type of legal research: a) errors of the authors of the study, which include the following errors: errors in determining the object and subject of the study, errors in determining the goals and objectives of the study, errors related to the incorrect presentation of the results of the study; b) errors related to the incorrect evaluation of the results of the study, when the criteria for evaluating a "positive" legal research are applied to "critical" legal research and vice versa.

5. Proposed ways to prevent the above errors.

Dividing research in the field of law into "positive" and "critical" and applying appropriate rules to them will improve the quality of the research and its assessment, which will, in our opinion, have a beneficial effect on the state of Russian legal science.