Chapter 1 | Page 19
In doctrinal research in law, the most common form of theoretical framework
is based on the legal system itself including its categories and concepts.37
While legal doctrinal research is relatively comparable to methodologies in
other disciplines, its nature is identified as ‘a mainly hermeneutic discipline’ in
which the process of concept building and theorising are closely intertwined
with describing and interpreting the law.38 On the other hand, given the nonempirical approach to the current research and its reliance on multiple
concepts and structures within law, economics and public policy, the research
approach is theoretical and conceptually-based to a large extent.
Considering the conceptual basis and focus of this study to reimagine and
advance a broader understanding of resources required for the realisation of
ESC rights, a theoretical approach with focus on clarifying central conceptual
parameters of the thesis was employed.
A theoretical approach was adopted because, this method ‘fosters a more
complete understanding of the conceptual bases of legal principles and of the
combined effects of a range of rules and procedures that touch on a particular
area of activity’.39 This approach, based on the policy research framework,40
infers implications and effects of human rights law on domestic social
institutions, including the governance and public policy machinery of the State.
It calls for a cross-disciplinary perspective that combines the strengths of legal,
economic and policy methodologies. Such an approach is particularly suitable
for the present study given that the topic is inherently multidisciplinary and
37
Pauline C Westerman, 'Open or Autonomous: The Debate on Legal Methodology as a
Reflection of the Debate on Law' (Working Paper University of Groningen, Faculty of Law,
<http://dx.doi.org/10.2139/ssrn.1609575 >.
38
Mark Van Hoecke, 'Legal Doctrine: Which Method(s) for What Kind of Discipline?' in Mark
Van hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind
of discipline? (HART Publishing, 2011), 7.
39
Enid Campbell and Don Harding (‘Pearce Committee’) Dennis Pearce, Australian Law
Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission
1987), 1068, cited in Terry C Hutchinson, 'Developing legal research skills: expanding the
paradigm' (2008) 33 Melbourne University Law Review 1065-1095.
40
The characteristics of the policy research framework was adopted from Terry Hutchinson,
Researching and Writing in Law (Thomson Reuters, Sydney, 2010).
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