Frances Camilleri-Cassar ‘Originality’ is of utmost importance in academic writing: what counts as original?
Dr Frances Camilleri-Cassar is the first woman appointed as Full Professor in the Faculty of Laws, University of Malta. Her research interests centre around gender, social policy, and equality law. She has published widely, and her most recent is a monograph entitled: Academic Research Methods for the Law Student: a practical guide, Faculty of Laws, University of Malta.
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1. Introduction
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cademic research is a critical process for asking questions. Sometimes, asking and attempting to answer questions involves a questionnaire, sometimes an in-depth interview, sometimes an experiment, and sometimes an entirely different and perhaps original method of research created by the researcher. However, what is a definition of originality in academic work? What is the relevance of originality? What is its importance, if at all? For example, originality in the assessment of a dissertation at the Faculty of Laws carries a substantially high fifty-five percent of the total marks. Additionally, law students are expected to submit their assignment through an electronic screening tool to detect plagiarism, and ascertain that the work carries an acceptable level of ‘originality’. Generally, the higher the similarity rate, the lower the originality, and vice-versa. Plagiarism is a serious breach of intellectual property rights, and can be severely penalised. In September 2017, the University of Malta published a Plagiarism Screening Policy for student assignments, dissertations and theses. So, what counts as ‘original’ in academic writing? The discussion that follows is precisely an attempt at answering that question.
2. What is ‘originality’? Originality is all about being creative, all about being innovative, and all about being novel when carrying out research, or when writing an academic piece of work, or even when embarking on a first attempt at drawing up a dissertation proposal. My experience of many years in academia has taught me that Malta’s educational system tends to stunt intellectual creativity in the young person, from a very early age. Free thinkers and critical thought may not always be understood, or even looked upon too kindly by educators. There seems to exist a non-verbal understanding in Malta’s age-old educational system where educators stick with a rigid pedagogy pertaining to the ‘jug and mug’ theory. Arguably, attempts by students at presenting innovative ideas that pull away from worn-out rules are oftentimes blunted or ignored, or what is worse, penalised for ‘excess’ in originality.
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For example, students studying languages in schools today are still examined on writing a summary of a comprehension, or a paraphrase of someone’s written work. What of writing skills that encourage originality such as a critical analysis of a written prose, or an assignment that stimulates thought for or against a topic pertaining to politics, or to religion, or law? Similarly, students at tertiary level are faced with a teaching-focused system of rote learning that concludes the semester with a written examination of hand-me-down lecture notes. Alternatively, a learning environment that encourages originality puts the onus on students to take responsibility for their own learning through their own research, and where coursework assignments play a more prominent role at assessment stage. I argue that this practice and style of learning is what gives space to student creativity, and a clear understanding of the concept of ‘originality’. There is some uncertainty around the choice of new topics for research, precisely because a student can come to grief if there is no supervisor to provide guidance on the subject matter. However, Finch and Fafinski1 claim that some universities take the view that the role of the supervisor is ‘to guide the process of the dissertation rather than to check the accuracy of its content, so it is immaterial whether or not they have expertise in the topic.’ Nonetheless, I still hold true that tertiary education must now pull away from the rote system, and guide students towards creativity and originality in their research and writing. For instance, the subject matter on the study-unit description of Child Trafficking Law, which I lecture, focuses largely on worst forms of child labour, and child sexual exploitation, and students taking my classes often ask whether or not they could select areas of research not covered in my lectures. One example was a request to research the law around trafficking in human organs, the provisions of which were added in 2016 under Section 248CA in the Criminal Code, Chapter Nine of the Laws of Malta. I find no problem at all when students choose to move quite away and beyond the topics listed in the study-unit description, and to discuss and share their research findings with their colleagues. For example, one of the most interesting subjects brought to the lecture room was precisely the subject of trafficking in children for use as child soldiers and suicide bombers, a current illegality that flies in the face of various treaties and protocols that 1
Emily Finch, Stephen Fafinski, Legal Skills (5th edn, Oxford University Press 2015) 328.
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prohibit the recruitment of children in conflict areas around the world.
3. Interdisciplinary research in legal scholarship? Traditionally legal scholarship was dominated by pure doctrinal research commonly called ‘black letter law’. Essentially, this type of research restricts itself to a textual analysis of the law, which focuses largely on statutes and court judgements, with minimal attention to the world and the societies that live within it. However, new generations of legal scholars and law schools internationally are either abandoning pure doctrinal analysis, or infusing it with interdisciplinary techniques and research approaches adopted from the humanities and the social sciences. Indeed, there seems to be consensus in the literature that interdisciplinary research broadens, as much as possible, the horizons of legal studying, whilst contextualising it in the society of which we all form part. This has helped to combine doctrinal analysis with empirical legal scholarship, for an understanding of why the law says what it says, and the way that it affects society2. For example, a study of constitutional law today may sound like old hat; however, a study of constitutional law from a comparative law perspective would entail a contrast of a number of constitutions on either a European level or worldwide. Here, originality is not about the Maltese Constitution per se, but rather in the comparison of Malta’s Constitution with the American, the Swedish or the Icelandic Constitution. Has there ever been a study that compares Malta with Iceland from a constitutional perspective? Another example of interdisciplinary research would be a comparison of research methods used in legal scholarship with methodological approaches and methods of research commonly used in the social sciences or the humanities. Whilst there are many writings on research methods, arguably, there is no study that compares legal research methods with research methods in other disciplines outside law. Here lies the originality of the study, and its contribution to academic knowledge. In line with current trends, the Faculty of Laws at the University of Malta has moved beyond the copy and paste of judicial methods of interpretation, and is now infusing scholarly legal research with techniques and approaches from other disciplines. Universities overseas have long moved on, and 2 Rob Van Gestel, Hans-Wolfgang Micklitz, Miguel Poiares Maduro, ‘Methodology in the New Legal World’ (2012/2013) European University Institute Working Papers page 5.
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are now teaching law students interdisciplinary research methods, other than traditional doctrine research. For instance, ‘law schools in the United Kingdom, the United States and elsewhere are offering new postgraduate programmes (such as socio-legal studies, feminist legal studies, critical legal studies and new approaches to international law) that encourage an interdisciplinary approach to the study of law’3.
4. Law in transition Law is a discipline in transition moving from a predominantly monodisciplinary dogmatic tradition towards multi-disciplinary and empirical research. However, there is very little literature on methods for scholarly legal research, apart from the books and articles on legal writing, on finding relevant sources, and on reading cases and statutes that are largely concerned with the technical skills needed for legal research. ‘Quite often the existing literature does not make a clear-cut distinction between scholarly legal research, and legal research performed by practising lawyers. One of the problems of many current books on how to do legal research is that they lack a level of sophistication, criticism, and self-reflection that is essential for scholarly legal research’4. Historically, legal scholarship relied heavily on ‘black-letter law’ focusing entirely on court judgements and statutes with little or no inference to society and the social construct often shaped by the law. By the early Seventies however, legal scholars began to pull away from doctrinal research and its narrow approach that merely seeks ‘order, rationality and theoretical cohesion’, and instead turned their attention to ‘law in context’ that looks primarily on society and its social problems. An example of a research question in this regard might be ‘to what extent is permitting plea bargaining, in cases of mass murder, perceived as an affront to the families of victims and their representatives?’ This research question would require a review of the implications of plea bargaining, together 3 Mike McConville, Wing Hong Chui, ‘Interview and Overview’, published in Mike McConville, Wing Hong Chui (eds.), Research Methods for Law (2nd edn, Edenborough University Press 2017) 5. 4 Rob Van Gestel, Hans-Wolfgang Micklitz, Miguel Poiares Maduro, ‘Methodology in the New Legal World’ (2012) European University Institute Working Papers page 20.
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id-dritt with doctrinal analyses of cases and statutes. However, this is not enough. The study would also require a qualitative approach to empirical research that includes in-depth interviews and written submissions produced by victim groups. Of course, the key focus of the research requires socio-legal methods that ‘violate the protocols of the black-letter approach […] the latter being clearly inappropriate for a number of identifiable reasons’5. Is legal research really so different from other social sciences or the humanities that it can do without generally accepted research methodologies? In the social sciences, there is consensus on how to draw up a research question, or how to use participatory observation, or in-depth interviews, all for the collection of unbiased and uncontaminated primary data. However, in law there are no accepted guidelines on, for example, how to undertake a proper literature review, or even how to write a case note. Malta’s Faculty of Laws has gone through significant transformations, and is facing challenges with no room for one dominant methodology for scholarly legal research. Today, law students are expected to add something new to the body of knowledge by engaging with empirical research. Law is and remains a social phenomenon. As the legal maxim runs: ubi societas, ibi ius: where there is society, there is law. Socio-legal research does precisely this: it contextualises the teaching of law to the society which it regulates. Is not law, first and foremost, a tool to solve societal problems?
5. Examples of originality Phillips and Pugh6 suggest it is easy to be original; however, is it? This section in the paper draws on a number of definitions of originality, and discusses examples of how to use different methodologies in crossdisciplinary research.
5.1 ‘carrying out empirical work that has not been done before.’7 5 Michael Salter, Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education 2007) 112. 6 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 61. 7 ibid.
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For instance, Article 19 sub-article 1 of the Marriage Act in Chapter 255 of the Laws of Malta lists a number of provisions where an action for the annulment of a marriage may be commenced by one of the parties to that marriage. Section 19(1)(a) provides that a marriage is void ‘if the consent of either of the parties is extorted by violence, whether physical or moral or fear’. The concept of violence is broad, and may be defined in many ways depending on the discipline and area of research interest; however, ‘fear’ provides ample ground for originality in a psycho-socio-legal context. For instance, an interesting research question would be: How is fear defined by legal jurists in cases of annulment of a marriage that has its basis precisely on fear? Apart from contextualising fear within a theoretical framework, the research study may also include empirical work by including one or two focus group sessions with spouses whose marriage has been annulled, precisely out of fear. As the subject matter is somewhat sensitive, one-toone in-depth interviews would prove more beneficial in the collection of ‘uncontaminated’ data that is rich and robust. How do the study participants perceive fear? Besides the definition given by legal jurists, the study would also seek an understanding of the definition of fear by those who have lived or are living the reality of fear. What induced the fear? Was it reverential fear, was it psychological fear, was it fear of physical violence, or threats? How is fear defined by the people who experienced the lived reality of fear? What were the circumstances that made the study interviewee submit to fear? What stopped the victim from fighting personal fear? Such empirical work that raises relevant research questions of fear from a legal perspective has not been done before, and here lies the originality of the study, and its contribution to knowledge in legal scholarship.
5.2 ‘making a synthesis that has not been made before.’8 Another definition to demonstrate what makes a study original is ‘making a synthesis that has not been made before’. For instance, Id-Dritt Volume No. XX published in 2014 by the Ghaqda Studenti tal-Ligi of the Faculty of Laws, contains various papers written by local academics on a number of subjects relevant to law students. However, one such paper in the publication is a synthesis of the provisions in the law that focuses largely on public interest 8
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disclosure, or more colloquially, whistle blowing legislation. The paper is titled: ‘“No more heroes anymore?” The Whistleblowing Dilemma: Recent Developments and a fresh look at some Conceptual Issues’, and was written by David Fabri. Indeed, the study provides a fresh look to the study of legal research, as it synthesises all the provisions on public interest disclosure in Maltese law, which until then were dispersed all over the statute book. Moreover, Fabri provides a detailed illustration with concrete examples of whistle blowing legislation, which took place both in Malta and more so abroad. Hence, all the provisions on the subject matter are now found in one single document. This is another clear example of originality in academic writing.
5.3 ‘setting down a major piece of new information in writing for the first time’9 Originality also lies in ‘setting down a major piece of new information in writing for the first time’. For example, suppose a study raises a research question pertaining to a specific provision in the Maltese Constitution concerning the appointment of judges. One relevant case that comes to mind is the appointment of Advocate Andre’ Camilleri as Judge of the Superior Courts in 2002, and his subsequent resignation. At that time, this was the only case where a Maltese Prime Minister sought the advice of the Commission for the Administration of Justice in appointing a judge. However the Commission advised against the recommendation on the grounds that Camilleri had, it appeared, not practised law at the bar. In other words, the Commission interpreted the Constitution as requiring an advocate to have practised in court for twelve years before that advocate could be appointed a judge of the Superior Courts. But all this was nonsense as quite some time previously, the Constitution had been amended, and the requirement revoked. What the Commission did not appreciate was that what is constitutionally required are twelve years of professional practice in law, and it is irrelevant whether that practice is at the bar or in an office. Hence, an original study would involve research of the historical evolution of the Maltese Constitution, and contribute to knowledge with an original finding that the provision on the appointment of judges was wrongly 9
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interpreted by the Commission for the Administration of Justice at the time. This is a research finding not recognised by the Commission, and which concludes that the Commission’s legal argumentation against the nonappointment of Camilleri as Judge of the Superior Courts was unsound. Hence, an original piece of academic work.
5.4 ‘adding to knowledge in a way that has not previously been done before’10 Another way of increasing the chances of originality in academic writing is by ‘adding to knowledge in a way that has not previously been done before’. For instance, the subject of treason and sedition has been written about in extant literature; however, analyses of the provisions of the law in question shed new light on their historical evolution, application and interpretation. One such example is the LLD thesis written by Kevin Aquilina in 1988 on ‘Treason and Sedition in Maltese Law’11. There is no doubt that in so far as this topic is concerned, there is quite a substantial amount of literature found in the UK, in Italy and also France on the subject matter. But there is no one single book which has analysed critically all the pertinent treasonable and seditious provisions of Maltese law, including relevant crimes from a case law perspective. Although there are innumerable books on English, Italian and French provisions on treason and sedition, there is no single book in Malta which focuses on Maltese crimes of treason and sedition. Hence the originality lies in the analytical study of each and every provision in Maltese law dealing precisely with treason and sedition.
5.5 ‘Bringing new evidence to bear on an old issue’12 Originality is evident also when ‘bringing new evidence to bear on an old issue’. Take the death penalty as an example. There exists substantial literature on the subject matter; however, instead of studying this topic from 10 ibid 62. 11 Kevin Aquilina, ‘Treason and Sedition in Maltese Law’ (LL.D. thesis, University of Malta 1988) 12 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 61.
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the point of view of history of legislation, or comparative law, or even criminal law, a study of the death penalty may be approached from the point of view of the right to life, or as addressed by the European Convention on Human Rights’ Protocol13, which abolishes the death penalty altogether. So although the study delves into existing knowledge, an innovative perspective may still be introduced. Although Malta had abolished the death penalty with the ratification of the European Convention on Human Rights, the death penalty remains present in the Maltese Constitution. An example from Kevin Aquilina’s work is his thesis for the Degree of Doctor of Philosophy in Law14. The research dealt with a subject matter in criminal law that is quite extensively treated in the literature, and that is the United Kingdom Official Secrets Act. However, the research approach adopted by Aquilina was original and innovative in that it carried out a human rights impact assessment, in order to determine which rights and fundamental freedoms were breached by the enactment in the criminal laws of Malta.
5.6 ‘Continuing a previously original piece of work’15 A novel approach to a research study is that of ‘continuing a previously original piece of work’. One such example draws on the two volume book by Andrew Vella titled: Storja ta’ Malta Volume I16 published in 1974, covers the period from pre-history to the Great Siege of Malta, while Volume II17 published in 1979, discusses the period from the Great Siege to the French occupation. Vella could not finish his opus because, in the meantime, he passed away. Somebody had to continue this piece of work, and the task fell upon Henry Frendo who published Volume III18 in 2004, and covers the British period in Malta until the nineteenth century. Presumably, a fourth 13 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamentl Freedoms concerning the abolition of the death penalty in all circumstances (Vilnius, 3rd May 2002). 14 Kevin Aquilina, ‘An Analaysis of the Maltese Official Secrets Ordinance from the Perspective of the Human Rights and Fundamental Freedoms of the Individual’ (Ph.D. thesis, University of London 1996). 15 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 61. 16 Andrew Vella, Storja ta’ Malta, vol 1 (Klabb Kotba Maltin, 1974). 17 Andrew Vella, Storja ta’ Malta, vol 2 (Klabb Kotba Maltin, 1979). 18 Henry Frendo, Andrew Vella, Storja ta’ Malta, vol 3 (Klabb Kotba Maltin, 2004).
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volume will be issued to cover the twentieth century or part thereof. Hence the originality of Frendo’s work lies in the fact that he continued a previously original piece of work through the publication of Volume III and possibly of a fourth volume as well.
5.7 ‘Looking at areas that people in the discipline have not looked at before’19 Another aspect of originality and a pioneering piece of work is ‘looking at areas that people in the discipline have not looked at before’. For example, the monograph by David Joseph Attard titled: The Exclusive Economic Zone in International Law20 and published in 1991 is the first book of its kind. In this sense, it is a landmark in the law of the sea. The same can be said of the monograph by Andrew Muscat titled: Principles of Maltese Company Law published in 200721, followed by a second edition in 201922. What is novel in these books is that they discuss an area of the law which has never been the subject of thorough review in previous academic writing, hence the originality in the work.
5.8 ‘Trying out something in this country that has previously only been done in other countries’23 Originality may be created through ‘trying out something in this country that has previously only been done in other countries’. For instance, a number of television programmes in Malta are often a copy and paste of other foreign television stations. Take the example of the Big Brother reality show, which was copied by Maltese television until the time when Endemol, 19 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 62. 20 David J. Attard, The Exclusive Economic Zone in International Law (Oxford University Press 1991) 21 Andrew Muscat, Principles of Maltese Company Law (2nd edn, Malta University Press 2007) 22 Andrew Muscat, Principles of Maltese Company Law (2nd edn, Malta University Press 2019) 23 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 61.
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the Dutch based media company that had the rights to this programme, sued the Maltese producers in Court. Leaving aside for the time being the law of copyright, the Maltese producers were, in this respect, original, albeit in breach of the law. They attempted to try out something in Malta that had previously only been done in other countries. I must add that at the end of the court proceedings, Endemol must have realised the deficit in Maltese creativity, and decided to give clearance to the production house - and perhaps even a handshake - and settled the dispute amicably. In short, the Maltese version of Big Brother was indeed something new in this country, despite the fact that the Big Brother programme had been losing currency in those foreign countries where it had been produced for many years.
5.9 ‘Taking a particular technique and applying it in a new area’24 Maltese Courts often apply existing techniques to new branches of the law. However, an example to demonstrate the definition of ‘taking a particular technique and applying it in a new area’ is a study by Kevin Aquilina titled: ‘Development Planning Legislation: The Maltese Experience’25 published in 1999. Malta’s courts of law apply, rightly or wrongly, techniques of interpretation to this branch of the law and, indeed, to evolving branches of the law. For instance, if in the law of civil procedure there is an institute of res judicata or of juridical interest, one finds that these two institutes end up being applied to another branch of the law, e.g. administrative law. At times, it makes sense to apply these civil law institutes to development planning law; however, at other times it might make more sense to apply different rules. The originality of Malta’s courts lies in the fact that by applying the principle of analogy, they extend civil law institutes to other branches of the law. Here lies the Courts’ originality.
5.10 ‘Using already known material but with a new interpretation’26 24 ibid. 25 Kevin Aquilina, Development Planning Legislation (Mireva Publications 1999). 26 Estelle Phillips, Derek S. Pugh, How to Get a PhD: A handbook for students and their supervisors (2nd edn, Open University Press 1996) 61.
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‘Using already known material but with a new interpretation’ is a type of originality that is very common in the literature and in the arts. This pertains to new interpretation of the meaning of a particular passage, or prose, or even an abstract painting by asking what did the dramatist, like Shakespeare for instance, have in mind when writing these lines in his sixteenth century play The Merchant of Venice? What did Picasso have in mind when he painted Girl Before a Mirror in 1932? What did Beethoven have in mind when he wrote his Symphony No.7 in 1811? Of course, one can try to extrapolate the artist’s thoughts from his own writings, paintings or music. However, this paper is not about the interpretation of paintings, or literature or music but rather about the study of the law. Yet, even in this realm of human knowledge, I can come up with a new interpretation of someone else’s work. For instance, I might disagree with commentators and critics on St Thomas Aquinas with regards to his understanding of natural law or the common good. And instead, I could put forth a new interpretation of the common good or natural law as understood by St Thomas Aquinas himself. Indeed, I can apply this approach in my research to any philosopher of law, and any theory propounded by any jurist.
5.11 ‘Showing originality in testing somebody else’s idea’27 Originality can assume different guises and can also consist in a combination of any of those listed in Phillips and Pugh the last of which is ‘showing originality in testing somebody else’s idea.’ For example, during his lectures, Kevin Aquilina claimed that when he was studying for a BA degree in Philosophy, he come across a philosopher by the name of Ludwig Wittgenstein whose writings were difficult to comprehend. However, Aquilina adds that the problem only lasted until he read a critical study of the philosopher’s books which made it then very easy to understand the philosophy of Ludwig Wittgenstein. Indeed, a good exposition of Wittgenstein’s works had made it possible to understand what seemed to be a complex and unintelligible task. By analogy, a commentary on a particular provision of a law or on a number of provisions may make it easier for the lawyer or law student to comprehend better what that provision is aiming at. This commentary can elaborate on the social purpose of the provision, or research which led to 27
ibid.
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the enactment of that provision, or it might be a simple codification of case law, in which case which judgment provoked that provision. An example of such a contribution is a publication by Tonio Borg titled: A Commentary on the Constitution of Malta28 published in 2016. Alternatively, it could be that the legal provision in question is incorporating into Maltese Law an international treaty or transposing an EU directive. Once again, it may be well worth it to look at the traveaux preparatoires or the draft directives, and any Commission or Parliamentary documents which shed light on the interpretation of that directive.
6. The Fundamental Importance of a Literature Review Earlier on, I signalled the importance of critical analysis, rather than, for instance, a paraphrase of someone else’s work. Indeed, critical capacity is an essential part of academic scholarship, and in any event, the literature review of texts and research reports is an essential first step in originality. This leads me to a brief discussion of the fundamental importance of a literature review, and its relevance in making one’s work truly original. A literature review is not just a descriptive list of available material or a set of summaries of existing knowledge as was taught to most at University. The purpose of a literature review is to develop an understanding of what already exists or has been established on a topic of interest or on a research question that stimulates thought, through a process of identification and interpretation of relevant legislation, cases and secondary materials in law produced by scholars and practitioners. More specifically, a literature review provides scope for a critical analysis of what has already been published, and it is through this rigorous analysis that an original treatment of an established topic can be developed. A literature review is based on primary sources which state the law, or on secondary sources which analyse law29. It is an account of what has been published by legal scholars and researchers on a chosen research topic. It follows the introduction to the research, and provides a framework to the 28 Tonio Borg, A Commentary on the Constitution of Malta (Kite Group 2016). 29 I. Dobinson, F. Johns, ‘Legal Research as Qualitative Research’, published in Mike McConville, Wing Hong Chui (eds.), Research Methods for Law (2nd edn, Edenborough University Press 2017) 34.
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study. The review builds around a specific research study, and is defined by a guiding concept around a problem question taking into account a range of real world realities and factual circumstances. Furthermore, it highlights the gaps in existing knowledge, thus providing a sound argument in defence of the choice of question, and demonstrates how the study will contribute to knowledge in the literature. A review is also an opportunity to showcase the ability to think critically and objectively about issues raised by previous research findings. This is what originality is all about. For instance, what other studies have there been around a chosen topic? Students at the Faculty of Laws are encouraged to avoid selecting an area in the law that has already been written about several times over, or alternatively, a topic that everyone else in the law course wants to investigate. As suggested earlier, originality carries a high mark in an exam. A literature review is not an annotated list describing or summarizing one piece of literature after another. It is usually work of rather low quality, and with little evidence of additional reading, when a study begins every paragraph with the name of the same legal scholar, or the same piece of legislation. Instead, work of exceptional quality and superior performance discusses readings that are critically evaluated and synthesized according to the guiding concept of the research question. This is why a literature review is of fundamental important in a research study because it helps identify areas of controversy, and raises questions that stimulate thought towards the creation of original academic writing.
7. Final remarks The aim of academic research and writing is not to replicate what has already been done; on the contrary, the aim is to contribute to academic knowledge in some way, no matter how small; something that helps further our understanding of the world in which we live. Interdisciplinary and empirical research are essential to an understanding of originality in scholarly legal writing. There still exists some scepticism against interdisciplinary research in law that has to do with old quarrels about whether or not law is a science. Old-time legal scholars claim that law is different from other sciences, however, they do not explain how and why, and what the justification is. 227
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They argue that multi-disciplinarians do not understand what it means for law to be a normative science, and multi-disciplinarians contend that legal scholarship merely defends personal views and opinion. Nonetheless, in today’s law schools, it is now accepted that legal research based only on narrative and the black letter approach, without any empirical content, is no longer encouraged, as was the position in the past. Smits30 poses a provocative statement when he suggests that legal scholarship is presently in the midst of an identity crisis. But is it? Controversies and debates aside, research findings in this paper suggest that non-doctrinal approaches represent a new avenue for studying law. Moreover, the merits and reliance of using interdisciplinary or socio-legal research generate empirical evidence to answer research questions, to solve societal problems, and to offer an opportunity for differentiation and originality in legal scholarship and academic writing. The more original a dissertation is the more praiseworthy it will be and, of course, the more will it be to the liking of the supervisors and examiners. One final remark: in recent years, there has been growing interest in gender as an important dimension in feminist legal studies. For example, what is the potential of feminist jurisprudence in developing methodologies that rely on women’s experiences and perspectives? To what extent do feminist methods in research challenge the foundational dimensions of male bias in law and legal institutions? Indeed, this area of research may be another approach to originality that could make significant contribution to currently sparse knowledge of the subject matter.
8. Acknowledgement I would like to thank Professor Kevin Aquilina for his comments and suggestions on this paper, as well as permission to apply examples he discussed during his lectures in Legal Research Methodology.
30 Jan Smits, The Mind and Method of the Legal Academic (Edward Elgar Publishing, Cheltenham 2012)
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