Research design

Yin (1994:18) refers to the concept of design as ‘the logic that links the data to be collected (and the conclusions to be drawn) to the initial questions of the study.’ In undertaking this study, I relied on understanding and evaluating my own experience in traditional pure doctrinal research as an undergraduate and post-graduate student and as a researcher. In traditional pure doctrinal research, legal doctrinal scholars not only use the legal system as their subject of inquiry, but also as their theoretical framework.

This approach in legal research served me well in the analysis of the various statutory provisions, case law and international treaty obligations considered in this study. While I have found these processes useful, I found that there are limitations in this approach. Of particular concern is the lack of engagement with the individuals who are most often the subjects of the law, the boys and the various stakeholders in the juvenile justice system. Thus, I felt that the choice of hearing from these

individuals would help enrich the study. This of course entailed for me, the discovery of new approaches and skills that I had hitherto not been exposed to as a student or as researcher. These approaches are also not generally used in the realm of legal practice.

In the course of understanding legal doctrinal scholarship, there have been attempts to encourage the use of a wider range of skills. For example, Karl Llewellyn, (1955) encouraged legal scholars to work patiently on new kinds of extra-doctrinal

scholarship by working carefully with interdisciplinary ideas. This notion of exploring interdisciplinary knowledge to widen my scope of understanding legal phenomena appealed to me as I felt that this would put me in a better position to understand and appreciate the context of the law as it affects the lives of children in conflict with the law.

128 Tushnet (1981) notes that legal scholars need substantial amounts of time to

develop an understanding of social theory that might usefully be employed in extra- doctrinal legal scholarship. The challenge is that legal scholarship is often ‘torn between grasping as much as possible the expanding reality of law and its context, on the one hand, and reducing this complex whole to manageable proportions, on the other’ (Hoecke, 2011: vii).

In recognising this challenge, I sought to strike a balance between these diverse needs in contemporary legal scholarship. Hence this study is an exploratory inquiry using semi-structured interviews with court officers, lawyers, police, prison officers, civil servants, NGO’s, UNICEF and incarcerated boys in Malaysia to seek an

understanding on child rights in relation to diversion and framing these with the documents and cases relevant to the discussion. I was conscious of the need to keep the scope of the research to manageable portions. I sought to achieve this by applying the traditions associated with empirical qualitative research in law particularly the philosophical and theoretical foundations associated with the methodology as considered in this Chapter.

The qualitative approach was taken because I was keen to explore and understand the social world using both the participant’s and my understanding of the phenomena being explored; in this case the rights of the child to diversion in Malaysia. This is due to the view that understanding the phenomena is mediated through meaning and human involvement and this I felt was best understood through the research design I had applied in this study.

The qualitative approach has found increasing application in legal scholarship particularly in seeking to understand people’s perception of law, justice and the legal profession (Webley, 2012:927). This is not to say that similarly, quantitative research in law has not been undertaken nor enriched the body of legal scholarship and

knowledge. For example, a recent study on examining victim-oriented tort law in action using an empirical examination of 1,237 decisions involving claims of sexual abuse in the Catholic Church in Netherlands (van Dijck, 2018) or a 2014 study on 205 death-eligible murders leading to homicide convictions in Connecticut from 1973–

129 2007 to determine if there were unlawful racial, gender, and geographic disparities (Donohue, 2014).

Brownsword is of the view that in so far as socio-legal research is concerned, it is now accepted that theoretical work and empirical content share a level of engagement and synergy (as cited in Gestel et al, 2012 ) and that all empirical research has an implicit, if not explicit, research design (Yin, 1994). However, in this study,a broader and less restrictive concept of “design” commonly associated with the quantitative research field was employed. Thus, I did not have a pre-determined well-worked-out set of hypotheses to be tested nor did I have specific data-gathering instruments that produce data to be statistically analysed in a separate process (Becker et al, 1977).

The theoretical framework derived from the data and data collection and analysis proceeded together. I endeavoured to ensure the study was not context bound but sought to be context sensitive and reflexive. Reflexivity represents the capacity to reflect upon the researcher’s actions and values during the research, when producing data and writing accounts. Thus, in this regard, the research design was a reflexive process ‘operating through every stage of a project’ (Hammersley and Atkinson, 1995:24). This aspect of qualitative research recognises that it ‘is not static but

developmental and dynamic in character, the focus is on process as well as outcomes’

(Holloway and Wheeler 2010:4).

The following sections explore the approaches and techniques I used to collect and analyse data, and how these elements taken together constituted an integrated strategy to seek an understanding on how events, actions, and meanings have shaped the issue of child rights in relation to diversion in Malaysia.