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When thinking about any risks associated with your research you may realise that it is difficult to predict your research needs and the accompanying risks as you were not sure what information would be required; this is why a literature review is necessary. A thorough literature review will help identify gaps in existing knowledge where research is needed; filling those gaps is one of the prime functions of research. The literature review will indicate what is known about your chosen area of research and show where further contributions from further research can be made.
Undertaking a literature review is probably one of the most difficult stages of the research process but it can be both exciting and fulfilling. This section aims to put the literature review into context and to explain what it does and how to do it.
The literature on a particular legal topic is of fundamental importance to the international community of researchers and scholars working within particular academic disciplines. Academic publishing supports research by enabling researchers to tell the world what they have discovered and allows others researching in the same area to peer review their work; in this way, a combined body of knowledge is established.
During your research, you will use the literature to:
The Purpose of Literature Review
Understanding existing research is at the core of your study. A good literature review is important because it enables you to understand the existing work in your chosen topic as well as explaining concepts, approaches and ideas relevant to that topic.
The literature review is also essential as it will enable you to identify an appropriate research method. Your research method, and needs, can only be established in the light of a review of existing knowledge.
Your literature review is regarded as secondary research. The research process is an ongoing one, so your literature review is never really finished or entirely up to date as reading and understanding the existing literature is a constant part of being a researcher; professionally it is an obligation.
Your research will draw upon both primary and secondary research. The difference between primary and secondary research is that primary research is new research on a topic that adds to the existing body of knowledge. Secondary research is research into what others have written or said on the topic.
You will also draw upon primary and secondary sources to undertake your research. Primary sources are evidence recorded at the time, such as a photograph, an artifact, a diary, or the text of a statute or court ruling. Primary legal sources are the products of those bodies with the authority to make, interpret and apply the law. Secondary sources are what others have written or said about the primary source, their interpretation, support, or critique of the primary source. Similarly, secondary legal sources are what academics, lawyers, politicians, journalists, and others have said or written about a primary legal source.
Part of the aim of your studies is to make a contribution to the existing body of academic knowledge. Without a literature review there would be a risk that what you are producing is not actually newly researched knowledge; instead it may only be a replication of what is already known. The only way to ensure that your research is new is to find out what others have already done. However, this is not to say that you should never attempt to research some things that have been done before if you feel that you can provide valuable new insights.
You also need to use the literature review to build a body of useful ideas to help you conceptualise your research question and understand the current thinking on the topic. By studying the literature you will become familiar with research methods appropriate to your chosen topic and this will show you how to apply them. Careful consideration should be given to the research methods deployed by existing researchers in the topic, but this should not stifle innovative approaches. Your literature study should also demonstrate the context of your own work, and how it relates, and builds, on the work of others; ‘to make proper acknowledgment of the work of previous authors and to delineate [your] own contributions to the field’ (Sharp et al., 2002, p. 28).
When you have completed your primary research, you will still have the task of demonstrating how your research contributes to the topic in which you have been working. Comparing your results to similar work within the topic will demonstrate how you have moved the discipline forward.
Comparing your results with the gaps that you identified in the early stages of your literature review will allow you to evaluate how well you have addressed them.
A successful literature review will have references from a number of different types of sources; it is not simply a book review. What is much more important than the number of references is that you have a selection of literature that is appropriate for your research; what is appropriate will depend on the type of research you are undertaking. For example, if your topic is in an area of recent legal debate, you will probably find most of the relevant material in journal articles or conference papers. If you are studying policy issues in law-making, you would expect to cite more government reports. In either case, you will need some core references that are recent and relevant. A research project could also contain a number of older citations to provide a historical context or describe established methods. Perhaps a recent newspaper, journal or magazine article could illustrate the contemporary relevance or importance of your research.
You will have to use your own judgment (and the advice of your tutor) to ascertain what the suitable range of literature and references is for your review. This will differ for each topic of research, but you will be able to get a feel for what is appropriate by looking at relevant publications; most publications fall into the following broad categories:
Online legal databases
Online legal research services such as Westlaw, LexisNexis, JSTOR, EBSCOhost, or HeinOnline are a good source of journal articles and as a repository of legislation, case law, law reports, newspaper and magazine articles, public records, and treatises.
Journal articles
These provide more recent discussions than textbooks. Peer-reviewed journals are the gold standard for academic quality. Having at least some journal articles in your literature review is almost always required. Note that the lead time on journal articles is often up to two years, so they may not be sufficiently up to date for fast-moving areas. Look for special issues of journals, as these usually focus on a particular topic and you may find that they are more relevant to your area of research.
Many law schools host journals that contain articles by academics and students; these may also be of interest. Other sources could include online newspapers such as The Conversation which are sourced from academia and designed to highlight current academic research or respond to current events.
Conference literature
Academic conferences are meetings in which groups of academics working in a particular area meet to discuss their work. Delegates usually write one or more papers that are then collected into a volume or special edition of a journal. Conference proceedings can be quite good in providing a snapshot of a topic, as they tend to be quite focused. Looking at the authors of the papers can also give you an idea of who the key names in that area are. The quality varies widely, both in terms of the material published and how it is presented. Most conferences include some professional researchers, some of whom can be contacted, and lots of students. Conference papers are often refereed but usually not to the same level as journal articles.
Having conference papers in your literature review does lend academic credibility, especially in rapidly developing areas, and conference papers generally contain the preliminary work that eventually forms journal articles.
Textbooks
Textbooks are good for identifying established, well-understood concepts and techniques, but are unlikely to have enough up-to-date research to be the main source of literature. Most disciplines, however, have a collection of canonical reference works that you should use to ensure you are implementing standard terms or techniques correctly. Textbooks can also be useful as a starting point for your literature search as you can investigate journal articles or conference papers that have been cited. Footnotes are a rich source of preliminary leads.
Law magazines
These can be useful, particularly for projects related to the role of lawyers. Be aware of the possibility of law firm bias (for example in labour law towards employers, employee rights, or trade unions) or articles that are little more than advertisements. Examples of professional journals include the SA ePublications (Sabinet), De Rebus - SA Attorneys' Journal, etc. Most jurisdictions have some form of a professional journal.
Government and other official reports
There is a wide range of publications, including ‘white papers', official reports, census, and other government-produced statistical data that are potentially useful to the researcher. Be aware of the possibility of political or economic bias or the reflection of a situation that has since changed.
Internal company or organisation reports/Institutional repository
These may be useful in a few situations but should be used sparingly, particularly if they are not readily available to the wider community of researchers. They will also not have been through a process of academic review. Such unpublished or semi-published reports are collectively called ‘grey literature.
Manuals and handbooks
These are of limited relevance, but may be useful to establish current techniques, approaches, and procedures.
Newspapers
Specialist supplements from quality newspapers can provide useful up-to-date information, as can the online versions of the same papers. Some newspapers provide a searchable archive that can provide a more general interest context for your work.
The worldwide web
This is widely used by lawyers today. According to the 2011 American Bar Association Report, 84.4% of attorneys turn to online sources as their first step in legal research (Lenhart, 2012, p. 27). It is an extremely useful source of references, particularly whilst carrying out an initial investigation. Although sites such as Wikipedia can be very helpful for providing a quick overview of particular topics and highlighting other areas of research that may be connected to your own, they should not usually be included in your review as they are of variable quality and are open to very rapid change. Treat the information you find on the internet with appropriate care. Be very careful about the source of information and look carefully at who operates the website.
Personal communications
Personal communications such as (unpublished) letters and conversations are not references. If you use such comments (and of course, you should respect the confidence of anyone you have discussed your work with), you should draw attention to the fact that you are quoting someone and mark it as ‘personal communication’ in the body of the text. Responses you might obtain from, for example, interviews and questionnaires as part of your research should be reported as data obtained through primary research.
It is crucial that most of your literature should come from peer-reviewed materials, such as journal articles. The point of peer reviewing is to increase quality by ensuring that the ideas presented seem well-founded to other experts in the topic. Conference papers are generally peer-reviewed, although the review process is usually less stringent, and so the standing of conference papers is not the same as for journals. Books, magazines, newspapers, and websites (including blogs, wikis, corporate sites, etc.) are not subject to peer review, and you should treat them with appropriate caution. Also, treat each publication on its merits; it is more helpful to use a good conference paper than a poor journal paper. Similarly, it is acceptable to refer to a well-written blog by a knowledgeable and well-known author provided that you supply appropriate context. In all these cases, the important thing is that you interpret the work correctly.
You will have undertaken legal research and developed your research skills as you prepared for earlier assignments. A literature review builds on this. You may, however, be wondering where to start. One technique is to use an iteration of five stages to help you with your early research.
The five stages are: planning, searching, gathering, analysing and comparing.
Following these stages will provide you with a systematic approach to gathering and analysing literature in your chosen topic of study; this will ensure that you take a critical approach to the literature.
To undertake an effective review of the literature on your chosen topic you will need to plan your review carefully. This includes setting aside enough time in which to undertake your review. In planning there are several aspects you need to think about:
Spending time thinking about all aspects of the literature review, planning your time, and setting yourself targets will help to keep your research on track and will enable you to record your progress and any adjustments you make, along with the reasons for those adjustments.
This section is designed to provide you with some reminders in relation to searching, choosing search terms and some ideas about where to start in undertaking a literature review.
Where to start
The best places to start are likely to be a legal database (or law library) and Google Scholar. Many students and academics now use Google Scholar as one of their ‘go to’ tools for scholarly research. It can be helpful to gain an overview of a topic or to gain a sense of direction, but it is not a substitute for your own research of primary and secondary sources.
Having gained an overview from your initial search through browsing general collections of documents, you will then need to undertake a more detailed search to find specific documents. Identifying relevant scholarly articles and following links in footnotes and bibliographies can be helpful as you continue your search for relevant information.
One of the decisions you will have to make is when to stop working on your literature review and your research, and when to start writing up your dissertation. This will be determined by the material you gather and the time constraints you are working on.
Selecting resources
One starting point may be to locate a small number of key journal papers or articles; for a draft outline proposal for your research, you might have around four to six of these, accumulating more as you develop the research subsequently. Aim for quality, not quantity. Look for relevant and recent publications. Most of your references will typically not be more than four years old, although this does depend on your field of study. You will need quite a few more in due course to cover other aspects of your research such as methods and evaluation, but at this stage, you need only a few recent items.
While reading these documents, aim to identify the key issues that are essential to your research question, ideally around four to six.
Compare and contrast the literature, looking for commonalities, agreements, and disagreements and for problem identification and possible answers. Then write up your analysis of the comparison and any conclusions you might reach. The required outcome will be that you can make an informed decision about how to proceed with your primary research, based on the work carried out by other researchers.
Note that ultimately there are no infallible means of assessing the value of a given reference. Its source may be a useful indication, but you have to use your judgment about its value for your research.
Reviewing your sources
Skim read each document to decide whether a book or paper is worth reading in more depth. To do this you need to make use of the various signposts that are available from the:
In your record, make a brief note (one or two sentences) of the main points.
Next, skim through the opening page of each chapter, or the first paragraph of each section. This should give you enough information to assess whether you need to read the book or paper in more depth, again make a suitable note against that record.
Reading in more detail: SQ3R
If you have decided to look in more detail at a source document that you have to skim read, you can use the well-known ‘SQ3R’ approach (Skimming, Questioning, Reading, Recalling, and Reviewing).
1. Skimming – skim reading the chapter or part of the paper that relates to your topic, or otherwise interests you.
2. Questioning – develop a few questions that you consider the text might answer for you. You can often use journal, chapter, or section titles to help you formulate relevant questions. For example, when studying a journal article with the title, ‘Me and my body: the relevance of the distinction for the difference between withdrawing life support and euthanasia’, you might ask, ‘How is the distinction between withdrawing life support and euthanasia drawn?’
3. Reading – read through the chapter, section, or paper with your questions in mind. Do not make notes at this stage.
4. Recalling – make notes on what you have read. You should normally develop your own summary or answers to your questions. There will also be short passages that you may want to note fully, perhaps to use as a quotation for when you write up your literature review. Be sure to note carefully the page(s) on which the quotation appears.
5. Reviewing – check through the process, perhaps flicking through the section or article again. It is also worth emphasising that if you maintain your reference list as you go along, not only will you save yourself a lot of work in later stages of the research, but you will also have all the necessary details to hand for writing up with fewer mistakes.
(adapted from Blaxter et al., 1996, p. 114)
There is no doubt that this approach takes considerably more effort than sitting back and studying a text passively. The benefit from the extra work involved in the development of a critical approach, which you must adopt for your research.
Following citations in a paper
When you have found (and read) your first couple of papers, you can then use them to seed your search for other useful literature. In this case, we will use this example:
When we looked at the references list in Suppon, J. F. (2010) ‘Life after death: the need to address the legal status of posthumously conceived children', Family Court Review, vol. 48, no. 1, pp. 228–45, a couple of items, going only by the titles, looked promising:
These are simply the papers that we felt looked most appropriate from the references. There is no formula for determining the best paper; you simply need to read a few and try to develop a feel for which seem the most appropriate for your own research project. You should only be citing papers that contribute to your research in a significant way, or that you have included material from; not everything that you read (and discarded) along the way.
Recording your references
We strongly suggest that you establish a recording system at the outset when you begin your research and keep maintaining records in an organised and complete manner as you progress. You need to choose a consistent method of recording your references; this is a personal choice and can be paper-based or electronic. Do not be tempted to have more than one method or repository as this can lead to confusion and unnecessary extra work. There are software tools available that can help you to both organise your references and incorporate them into your written work. Always keep a backup copy of your records.
The following is a suggestion as to how you might record any document that you think you may use.
Open a new record, and record the basic details:
Additionally, for books:
Additionally, for journal papers:
‘How many references are needed to make a good literature review?’ There is no straightforward answer to this. In general, an appropriate number of references would be in the range of 15 to 25, with around 20 being typical. However, this is not hard and fast and will depend on the topic and research question chosen.
The crucial thing is to aim for quality and relevance; there is no credit to be gained from amassing a lengthy list of material, even if it all appears to be relevant. Part of your task is to select a range of references that is appropriate for the length and scope of your research project. It is easier, and more conducive to good research, to handle a smaller number of references specifically chosen to support your argument. Remember also that in general, a student whose research project contained a smaller number of references would generally be expected to demonstrate a deeper and more critical understanding of those references.
A colleague once commented on a student’s work in the following vein: ‘I don’t really need you to tell me what the author thinks since I can read her thoughts myself, but I do want to know what you think about what the author thinks’. Literature reviews are not a description of what has been written by other people in a particular field, they should be a discussion of what you think of what they have written, and how it helps clarify your own thinking.
This is why critical judgement is so important for your literature review. You must exercise critical judgement when determining which sources to read in-depth, and when evaluating the argument they put forward. Finally, critical judgement is important in communicating how those arguments might frame your research. It should not be a narrative of what you have read and the stories those sources tell. It should be sparing in its description of others’ arguments, and expansive in how those arguments have shaped your own thinking.
You need to exercise critical judgement as to which resources are the most useful and worthy of discussion. Having done this, you also need to ensure that your review is analytical rather than descriptive. A critical review extracts elements from the resource that directly relate to the chosen research interest; it debates them, or compares and contrasts them with how other resources have analysed them. A critical examination of the literature should allow you to develop your understanding of your research question. It should guide you to what knowledge you will need to answer your research question, and begin to develop some subsidiary questions. This will break the content down into more manageable and achievable segments of knowledge that you require.
Some elements of a good critical literature review are:
An excellent way to critically analyse a document is to use the PROMPT system. The PROMPT system indicates what factors you should consider when evaluating a document. PROMPT stands for:
By thinking about each of these factors when you read a publication in-depth, you will be able to provide a deeper, more critical analysis of each publication. A final tip for critical reading is to note down your overall impressions and any questions you still have at the end. Keeping a list of such open questions can help you identify the gaps in the literature by noticing which questions were raised, but not answered, by the publication; this, in turn, will guide your research.
In the planning stage, you thought about the gaps in existing knowledge you had identified, and which you then used as a basis to develop your research question. Through the work, you undertook in the earlier stages of your literature review you have a clear understanding of the existing work within the topic. At this point, a comparison of the results of your literature review, with the gaps you had previously identified, will enable you to reflect, and consider, whether you now have enough knowledge to address those gaps. You can then evaluate whether you need to further refine your literature review.
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