Research Methods for Law

By Mike McConville; Wing Hong Chui | Go to book overview

CHAPTER 5
Integrating Theory and Method in
the Comparative Contextual
Analysis of Trial Process

Mark Findlay and Ralph Henham


INTRODUCTION

In this chapter we employ comparative contextual analysis of the trial process1 in order to reveal the crucial importance of theoretical foundations for socio-legal research. Comparative contextual analysis2 is the methodology selected to contrast trial traditions, and in so doing translates compatible the- oretical frameworks into research outcomes.

The paper begins by summarising some of the major theoretical challenges faced by comparative research into the criminal process and their influence on the theoretical framework chosen for analysis. Within this conceptualisation we then describe our approach to contextual modelling and explain how this may be utilised in comparative settings through the adoption of inductive and deductive methodologies. The chapter concludes with an illustration of the potential for comparative contextual analysis, suggesting how it can provide a unique and valuable approach to the integration of theory and method in socio- legal research.


THEORETICAL CHALLENGES

The fact that comparative contextual analysis requires an appreciation of the social reality of historical, social, political and economic variables impacting on the trial process means that it becomes necessary to deconstruct the ways in which criminal justice processes are conceptualised in respective jurisdictions. This involves a recognition that the normative significance of process may rep- resent different philosophical interpretations of what constitutes epistemolog- ically accepted empirical ‘truths’. It also means that the moral validity of principles about punishment is seen as relatively contingent, as are the symbols

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