Legal Research Sources c.

Encyclopedias
1. Printed Sources d. Academic Journals (law reviews of law schools)
a. Constitution 3. Finding Tools
b. Statutes a. Digests
c. Court Decisions b. Annotations
d. Administrative Rules c. SCRA Quick Index-Digest
e. Scholarly Commentaries d. PHILJURIS and LEX LIBRIS
2. Electronic Sources
Laws in General
Legal Bibliography Law is a collection of rules imposed by authority. It is a relation
A bibliography is a list of descriptions of published materials of individual with one another. This relation affects the social
either relating to a given subject, or by a given author. A and economic order. It is a body of rule of conduct. This is the
bibliography of law books may refer to a list of an authors way that a court uses to make a decision. It is a regulation
legal works, or of the literature bearing on a particular subject established by a community, society or nation by some
or field of law. authority and applicable to all people living under it. It
influences the political, economic and social system of every
We have the following bibliographies: (1) Philippine Legal civilized society. It affects every person directly or indirectly
Bibliography by Justice Federico B. Moreno (1973); (2) and regulates practically for every known human activity. It is
Handbook on Legal Bibliography by Andres B. Soriano (1984); those rules and principles that govern and regulate social
(3) A Guide to Philippine Legal Materials by Fortunato Gupit conduct which can be enforced in the court. It operates to
and Daniel T. Martinez (1993). regulate the action of a person. It is enforced for maintaining
peace, security, and justice in the state. Law is correlated with
Sources of Law justice. It is not static, it is dynamic in nature and will be
1. Primary Sources changed as per the requirement of the state.
a. First major primary sources: products of
legislative actions, codes and statutes. Law can be either public or private. Public law is concerned
b. Second major primary sources: judicial with the public or it looks public as a whole and this is divided
decisions. into three class such as constitution law, administrative law,
c. Third major primary source: administrative law and criminal law. Similarly, private law concerns to the
2. Secondary Materials individual. It is separated into such special fields as a contract
a. Treatises of agencies, sales, negotiable instruments, etc. These areas
b. Commentaries generally pertain to the business sector.
Characteristics of Law
1. It is a set of rules.
2. It regulates the human conduct
3. It is created and maintained by the state.
4. It has certain amount of stability, fixity and uniformity.
5. It is backed by coercive authority.
6. Its violation leads to punishment.
7. It is the expression of the will of the people and is
generally written down to give it definiteness.
8. It is related to the concept of 'sovereignty' which is the
most important element of state.
Letter of the Law
A law is a written order -- a set of instructions, or software --
that provides directions for human behavior. The entire written
content of a law is the "letter of the law," and it is nothing more
or less than the fixed arrangement of its words and
punctuation. The letter of the law conveys the spirit of the law.
Spirit of the Law
Contained within the letter of the law is the purpose, or intent,
which is termed the "spirit of the law." For any given law, the
spirit of the law is the hoped-for change, or benefit, that the
law will produce, as predicted by the designers of the law. In
other words, laws are tools that are intended to be useful.
Since the spirit of the law is the reason for its existence, the
letter of the law is subordinate to the problem-solving intent of
the law.
Sanctions
Laws are the forcible means by which a government achieves
its goals; they are coercions, restrictions, prohibitions, or
commands for action that attempt to regulate or change the
behavior or status of those individuals and institutions that are
subject to the law.
To encourage individuals and institutions to comply with the
law, each law has a mechanism of enforcement, or authorized
sanction (the "carrot or stick"), that is applied to accomplish
the intent of the law. Subsidies, fines, and imprisonment are
examples of mechanisms that may be used as the forcible
sanction of a law.
Costs
All laws consume and divert resources. The costs to a
government for the creation and operation of its body of laws
are borne by the people. To pay the direct costs of laws,
governments create and enforce additional laws (at additional
cost to the people) to raise revenue through sanctions such as
taxes, fees, and fines.
There are nine principal costs of a law of government:
1) The cost of the research and design effort that is required
to create the law.
2) The cost of the legislature to conduct the legislative
process and perform legislative oversight of the law.
3) The cost to promulgate the law, its amendments, and
eventual repeal.
4) The disbursement of funds from the treasury as specified
by the law.
5) The cost to enforce the law.
6) The cost to administer and interpret the law in the courts of
justice.
7) The cost of compliance: the time, labor, and funds that are
expended by those who
are required to comply with the law.
8) The opportunity cost, or the loss of opportunity for
individuals and institutions to conduct
alternative activities of high value, such as education or
research, because the
resources for those activities were instead applied to the
law.
9) The cost to assure and improve the quality of the law
through quality assurance
(QA) and quality improvement (QI) programs.
Side Effects
Laws, like all other human creations, may or may not be
useful, but they always produce unintended side effects. The
parameters used to measure the side effects of laws are the
human rights, living standards, and quality of life standards of
the people -- any or all of which may be unintentionally
degraded when a law is enforced.
Performance
Since every law forces a change in the natural order of things
and, since every law imposes restrictions, incurs costs, and
produces unwanted side effects, the performance, or
usefulness of each law, in terms of its overall effect upon the
well-being of the public, can be derived.
The performance of a law is, simply, the measure of the
problem-solving benefit of the law minus the measured sum of
its burdens (restrictions, costs, and side effects). If the net
benefit (benefit minus burdens) is positive, the law is useful. If
the net benefit is zero, the law is useless. If the net benefit is
negative, the law is detrimental. For a democracy, the only
valid laws are those whose net benefit is positive.
Fallibility
Laws are the product of human creative efforts and are
therefore fallible. They may fail in their objective as a result of
design defects or become outmoded. They may also incur
excessive costs or produce unacceptable side effects.
Fortunately, laws, like every other human-made product, may
be improved by design changes (amendments) and they may
be repealed when they are found to be less than useful.
In a democracy, the ultimate purpose of laws is to solve or
mitigate the societal problems that degrade or threaten to
degrade the liberty and well-being of the people, i.e., the
"public good." Click here to learn more about the parameters
that define the public good.
Effectivity of Law
Section 2 of Article 2 of the New Civil Code of the Philippines
Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette or a
newspaper of general circulation unless it is otherwise
provided.
Classifications of Law
A. Criminal Law and Civil Law
B. Private Law and Public Law
C. Substantive Law and Procedural Law
D. Municipal Law and International Law
E. Written Law and Unwritten Law
F. Common Law and Equity Law
1. Public and Private Law: Public Law can be defined as that
aspect of Law that deals with the relationship between the
state, its citizens, and other states. It is one that governs the
relationship between a higher party the state and a lower
one, the citizens. Examples of public law include Constitutional
Law, Administrative Law, Criminal Law, International Law and
so on.
Private law, on the other hand, is that category of the law that
concerns itself with the relationship amongst private citizens.
Examples include the Law of Torts, the Law of Contract, the
Law of Trust and so on.
2. Civil Law and Criminal Law: Civil law in this regard can be
defined as the aspect of Law that deals with the relationship
between citizens and provides means for remedies if the right
of a citizen is breached. Examples of civil law include the Law
of Contract, the Law of Torts, Family Law etc.
Criminal Law, on the other hand, can be referred to as that
aspect of Law that regulates crime in the society. It punishes
acts which are considered harmful to the society at large. An
example of criminal law is the Criminal Code Act which is
applicable in the Southern part of Nigeria.
When treating a criminal case, the standard of proof to be
used is proof beyond reasonable doubt; S.135 Evidence Act
2011. Also, the burden of proof does not shift from the
prosecution. What this means is that before a conviction can
be gotten, the state has to prove the commission of the crime
to be beyond reasonable doubt.
On the other hand, in civil cases, the standard of proof is on
the balance of probabilities; S.134 Evidence Act 2011. Also,
the burden of proof shifts between both parties when they
need to establish their case. Judgement normally goes in
favour of the particular party that has been able to prove its
case more successfully.
3. Substantive and Procedural Law: Substantive Law is the
main body of the law dealing with a particular area of law. For
example, the substantive law in relation to Criminal Law
includes the Criminal Code Act and the Penal Code Act.
Procedural law, on the other hand, is law in that deals with the
process which the courts must follow in order to enforce the
substantive law. Examples include the rules of the various
courts and the Administration of Criminal Justice Act 2015,
which is the procedural law in relation to the Criminal Code Act
and the Penal Code Act.
4. Municipal/Domestic and International Law:
Municipal/Domestic law is the aspect of law which emanates
from and has effect on members of a specific state. An
example of a municipal Nigerian law is the Constitution of the
Federal Republic of Nigeria 1999(as amended) which applies
in only Nigeria.
International law, on the other hand, is the law between
countries. It regulates the relationship between different
independent countries and is usually in the form of treaties,
international customs etc. Examples of International law
include the Universal Declaration of Human Rights and the
African Charter on Human and Peoples Rights.
It should be noted that according to the provision of S.12 of the
1999 Constitution (as amended) International treaties cannot
have the force of law in Nigeria except they are enacted by the
Nigerian National Assembly.
5. Written and Unwritten Law: A law would not be regarded as
written just because it is written down in a document. Written
laws are those laws that have been validly enacted by the
legislature of a country.
Unwritten laws, on the other hand, are those laws that are not
enacted by the legislature. They include both customary and
case law. Customary Law as part of its basic characteristic is
generally unwritten. Case law, though written down in a
documentary format, would be regarded as unwritten law
based on the fact that it is not enacted by the legislature.
An example of this is the good neighbour principle established
in the case of Donoghue vs. Stevenson. The principle posits
that manufacturers of products should take utmost care in their
manufacturing activities to ensure that the consumption of their
product doesnt result in harm to the consumer. This principle
is not enacted in a statute but is a case law which is applicable
in Nigerian Courts.
6. Common Law and Equity: In the legal sense, the term
common law means the law developed by the old common law
courts of the Kings Bench, the Courts of Common Pleas and
the Courts of Exchequer.
The English common law is regarded as such because it is law
common to all parts of England. It grew over time from the
practices, customs and way of life of the people. It is largely
unwritten. The first common law judge was the King himself.
People who had disputes usually brought them to the King to
settle them.
However, due to matters of state, the king didnt have time to
settle all cases. As a result of this, the king appointed
members of his court who were to settle disputes in his stead.
These judges had the authority of the king and any
disobedience to them was treated as disobedience to the king
and punishment was swift.
These different judges travelled the length and breadth of the
realm to settle disputes. When they got to a particular location,
they applied the customary law in that location in order to
settle disputes. Regularly, these different itinerant judges
would come together to compare the different customary laws
they encountered on their travels.
They discarded customs that were thought to be insensible
and accepted those which were sensible. This led to the
conglomeration of different customs which were then applied
all through the realm. This then metamorphosed into the
common law of England.
However, the common law was strict, formal and full of
legalism. One example of this was in its system of writs. If an
action did not fit into a writ, there was no remedy for such
action. Also, the only remedy available in common law was
that of damages.
Due to the harshness of common law, the people petitioned
the King directly for judgement. The Lord Chancellor, as the
Kings Prime Minister, was the one that dealt with most of
these petitions. His court was called the Court of
Chancery/Equity. The Lord Chancellor, was usually a bishop
and thus, he applied the principle of fairness and natural law in
making his decisions.
Subsequently, there was conflict between the common law
court and the court of chancery. This conflict came to head in
the Earl of Oxfords case. In this case, the plaintiff was the
assignee of a lease and he built a house and planted a garden
on the land. Subsequently, the defendant/owner of the land
sought to evict him from the land. The assignee thus sued and
lost at common law, and he appealed to the court of chancery.
The court of equity accepted his petition and allowed him to
stay on the land. The reasoning of the Lord Chancellor, Lord
Ellesmere, was that by natural law, it was only fair and just for
a person who builds a house to be able to live in that house.
This judgement prompted Lord Coke, the Chief Justice of the
Kings Bench to accuse the Lord Chancellor of frustrating the
rules of common law. The matter was brought to the King who
referred it to Lord Francis Bacon. Francis Bacon supported the
court of equity and ruled that whenever there was a clash
between common law and equity, equity would prevail.
This ruling however, did not help to completely solve the
problem between the two courts. This was due to the fact that
the common law courts could only grant the remedy of
damages and thus, anyone seeking a different remedy would
first pass through the common law courts before going to
equity.
Over the years, the two systems were merged till finally, in
1875, the Judicature Act fused the two systems into one court.
However, although they are applied in one court, the rules of
common law and equity can be distinguished from each other.
This is what prompts the statement Although the two streams
now flow into one, their waters do not mix.
Definition of Statutes
A statute is a written law passed by a legislature on the state
or federal level. Statutes set forth general propositions of law
that courts apply to specific situations. A statute may forbid a
certain act, direct a certain act, make a declaration, or set forth
governmental mechanisms to aid society.
A statute begins as a bill proposed or sponsored by a
legislator. If the bill survives the legislative committee process
and is approved by both houses of the legislature, the bill
becomes law when it is signed by the executive officer (the
president on the federal level or the governor on the state
level). When a bill becomes law, the various provisions in the
bill are called statutes. The term statute signifies the elevation
of a bill from legislative proposal to law. State and federal
statutes are compiled in statutory codes that group the
statutes by subject. These codes are published in book form
and are available at law libraries.
Statutes are not static and irreversible. A statute may be
changed or repealed by the lawmaking body that enacted it, or
it may be overturned by a court. A statute may lapse, or
terminate, under the terms of the statute itself or under
legislative rules that automatically terminate statutes unless
they are reapproved before a certain amount of time has
passed.
Definition of Constitution
The fundamental law, written or unwritten, that establishes the
character of a government by defining the basic principles to
which a society must conform; by describing the organization
of the government and regulation, distribution, and limitations
on the functions of different government departments; and by
prescribing the extent and manner of the exercise of its
sovereign powers.
Treatises and International Agreements
Having the same force or authority as legislative enactments
are the treaties and international agreements which the
Philippines enters into with other states. A treaty has been
defined as a compact made between two or more independent
nations with a view to the public welfare. As a member of the
family of nations, the Philippines is a signatory to and has
concluded numerous treatise and conventions.
The official text of treatise entered into between the Philippines
and foreign nations is published in the Official Gazette.
Another official source is the publication known as Treaty
Series, released by the Department of Foreign Affairs,
beginning August, 1947 at regular intervals. Treatise affecting
the Philippines before the adoption of the Constitution appear
in Acts of Congress and Treatise Pertaining to the Philippine
Islands, published in 1920 (Washington, GPO).
Materials for treatise and international agreements where the
Philippines is a signatory are now found in the Philippine
Treaty Series published by the U.P. Law Center in 7 volumes
from 1946 to 1982. The index to this is the Philippine Treaties
Index, 1946-1982 published by the Foreign Service Institute.
This index is divided into 2 parts Bilateral Agreements and
Multilateral Agreements. The Bilateral Agreements section is
arranged alphabetically by country or international agency
while the Multilateral Agreements section is arranged by
subject.