INTRODUCTION, BACKGROUND AND CONTEXT
1.10 RESEARCH METHODOLOGY
A study on the realisation of reproductive health rights of women in the midst of cultural practices as well as extant instruments requires a systematic exposition of the laws governing the reproductive autonomy of women in the two countries, and also an analysis of the relationship between the laws and the cultural practices. This will give room for an assessment of the impact of the cultural practices on the realisation of the rights - and what can be done for women to fully realise their right of autonomy, as envisaged by the laws.
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Thus, the approach to achieve this is the doctrinal research approach. This research approach has been described as the traditional and dominant approach to legal research.131 Doctrinal research, as a method of inquiry, deals with the formulation of legal “doctrines” through the analysis of legal rules on how it has been developed and applied.132The word “doctrine” is derived from the Latin word doctrina, which means instruction, knowledge and or learning. The doctrine in question includes legal concepts and principles of all types – cases, statutes and rules.133This research approach deals primarily with “what is the law” by exposing the legal rules regarding a particular situation, and this entails analysing the laws carefully to identify the ambiguities - exposing inconsistencies and what could be done to fill the identified gaps.134 It involves finding one right answer to a particular legal question or set of questions.
The doctrinal research approach requires a number of steps to be taken to achieve the desired goal. The first step is analysing the legal issues that require investigation. To conduct this analysis, the researcher must be armed with background information on the subject matter. It means that the law on the legal issues under consideration must be located.135 This could be achieved by reviewing the existing literature, cases, treaties, legislation, among others – on the legal principles in respect of the legal issue under consideration.
The second step is to determine the relevant rules of law applicable to the identified issue. At this stage, the primary and secondary materials in respect of the legal issues will be interpreted and analysed. This study focuses on the interplay between cultural practices and the reproductive health rights of women. As such, the primary material to be considered will include treaties and international conventions on the reproductive health rights of women, which have been ratified and signed by South Africa and Nigeria. Equally, the provisions of the constitutions of countries, legislation and government policies on cultural practices and women‟s reproductive autonomy, will be analysed.
131 R.A. Posner“The present situation in legal scholarship”(1981) 90(5) The Yale Law Journal 1113.
132 A.K Singhal & I. Malik“Doctrinal and social-legal methods of research: Merits and demerits” (2012) 2(7) Educational Research Journal 252.
133 T. Hutchinson & N. Duncan“Defining and describing what we do: Doctrinal legal research” (2012)17(1) Deakin L. Rev. 83, 84.
134 Posner, note 131 (above).
135 Hutchinson &Duncan, note 133(above).
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To gain an in-depth knowledge of the study topic, the analysis of the relevant rules will not be limited to the primary sources. The analysis and contributions of different authors in the field will also be considered. This will elucidate the principles in the primary legislation.136 Hence, this study will also rely on textbooks, journal articles, monographs, theses, cases, conference papers, newspapers and magazines, reports of government departments, and materials sourced from the internet. The next step that will be embarked upon is to subject the information gathered from these sources to content analysis. At this stage, the research questions identified will be synthesised in the content of the applicable rules.
In subjecting the information to content analysis, a number of techniques will be used to synthesise the information. The scope of the research topic will require the use of two techniques to analyse the information. The first is deductive reasoning; “legal reasoning is often deductive because the general rules are „given‟, for example through legislation”.137As such, deductive reasoning will be engaged in terms of analysing the treaties, constitutions and legislations. The international legal framework for the protection of the reproductive health rights of women will be examined alongside the framework for the protection of these rights in South Africa and Nigeria. It will be deduced whether the two countries have complied with the international human rights law in terms of protecting these rights.
The second technique to be employed by this study in analysing the information, is analogy, which “involves locating similar situations arising... and then arguing that similar cases should be governed by the same principle and have similar outcomes”.138 This method will be used in making a comparative analysis of the cultural practices that inhibit the reproductive health rights of women in South Africa and Nigeria – and lessons that the two countries can learn from each other.
The last step in the research is to come to a conclusion based on the facts that has been established from the various materials considered.
136 Singhal &Malik, note 132 (above).
137 Hutchinson &Duncan, note 133 (above) 111.
138 ibid.
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The study at this stage will also offer recommendations on what could be done to fill the identified gaps.