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Legal Research
Legal Research
Legal Research
Philippine law, like the law of other countries, comes from a variety of
sources. In the context of legal research, the term “sources of law” can refers
to three different concepts. In one sense, the term sources of law refers to the
origins of legal concepts and ideas. Custom, tradition, principles of morality,
and economic, political, philosophical, and religious thought may manifest
themselves in law. Legal research frequently must extend to these areas,
especially when historical or policy issues are involved.
The term sources of law can also refer to the governmental institutions
that formulate legal rules. The Philippines is a democratic and republican
State.1 Although there are some variations in their structures, each of these
governments has legislative, executive, and judicial components that interact
with one another. Because all three branches of government “make law” and
create legal information that is the subject of legal research, researchers must
understand the types of information created by each branch and the
processes through which that information is created.
Legal authority is any published source of law setting forth legal rules,
legal doctrine, or legal reasoning that can be used as basis for legal decisions.
In discussions about legal research, the term authority is used to refer both
types of legal information and to the degree of persuasiveness of legal
information.
1
Art. II, Sec. 1 of the 1987 Constitution of the Republic of the Philippines.
about the law and are used to explain, interpret, develop, locate or update
primary authorities. Treaties, articles in law reviews and other scholarly
journals, Supreme Court Reports Annotated (SCRA), restatements of the
law, and looseleaf services are examples of secondary authorities.
Only primary authority can be binding; but some primary authority will
be merely persuasive, depending on the source of the authority and its
content. Secondary authority can never be binding, but can be persuasive.
The application of legal authority to individual problems is a complex and
often controversial process. Variations in the facts of individual cases enable
judges, influenced by their own philosophies and perspectives, to exercise
wide discretion in interpreting and applying legal authority.
2
Taken from http:// www.remburssi.org/projects/philippines/legal.htm (last visited on July 21, 2011)
distinguished from the “written”, or statutory, law. The common law was an
oral tradition derived from the general customs, principles, and rules handed
down from generation to generation and was eventually reflected in the
reports of the decisions of courts. The English common law is still cited as
authority in American courts. Then the Philippines was a colony of
America for about half a century.
The common law tradition should be contrasted with the civil law
tradition, which is based on Roman law and predominates in continental
Europe and other western countries. Common and civil law systems differ in
their theories about the source of law, the relative persuasiveness of the
sources, and the ways in which the sources are used in legal reasoning.
For example, in legal systems that are part of the civil law tradition, the
legislature creates a comprehensive code of legal principles that represents
the highest form of law, and there is a presumption that code provisions apply
to every legal problem. In the Philippines, there is no presumption that
statutes or codes cover all legal problems; many legal principles are
discoverable only through the unwritten, or customs.
3
G.R. No. L-4504. December 15, 1908
of three levels, and it is important to understand what types of information
are created at each level and where that information can be found.
The ratio decidendi is the holding or the principle of law on which the
case was decided. It is the ratio decidendi that sets the precedent and is
binding on courts in the future. Unlike legislatures, American courts do not
promulgate general propositions of law, nor do they respond to hypothetical
questions. Rather, courts decide actual cases and controversies, and the rules
they announce are tied to
specific fact situations. Therefore, the ratio decidendi, or rule of the case,
must be considered in conjunction with the facts of the case.
7
Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent.
8
Ibid.
Decisions of the Supreme Court are treated as such. However,
final decisions of the Court of Appeals which under the common law
doctrine should be binding before lower courts, have not in practice
been considered so not because of lack of regard to these decisions
but primarily because these decisions are largely not reported or
published.9
9
and passed according to the procedure, required to constitute it as
part of the law of the land. Statutes enacted by the legislature are
those passed by the Philippine Commission, the Philippine
Legislature, the Batasang Pambansa, and the Congress of the
Philippines.10 In comparison, a constitution is the fundamental body of
principles, most often written, by which a political body, such as a nation or
state, governs itself. Because many of the basic concepts and techniques of
statutory and constitutional research are similar, they can be discussed
together at an introductory level. However, the Philippine Constitution, is a
pervasive and specialized subject; including it in a general discussion of
legislation should not obscure either its importance or its uniqueness.
In English law, the king enacted the earliest statues with the
concurrence of his council; later, the role of stature-maker was assumed by
Parliament. In the Philippines, statues are enacted by the legislative branch
and signed into law by the chief executive. The growth of statutory law has
reflected the impact of the industrial revolution , as it became apparent that a
jurisprudence based only on judicial decisions could not meet the needs of a
growing dynamic society. Situations developed in which answers were needed
that were not found in court reports, or the answers found in court reports
either no longer met current needs, or resulted in actions that were
considered unjust.
Researchers also search for cases from other jurisdictions that have
interpreted similar statutes. Although these opinions are not binding authority,
well-reasoned opinions from other courts can be very persuasive. This
approach is consisted with the doctrine of precedent, under which the
decisions of other common law courts may be considered, even if they are not
binding.
5. Administrative law
Administrative law can be a very complex area to research. Not only will
researchers need to find, interpret, and update the rules, regulations, and
decisions created by the administrative agency, but
they will also need to find, interpret, and update the legislation the agency is
administering and judicial opinions that interpret those rules, administrative
adjudications, and legislation.
SECTION B. THE MATERIALS OF LEGAL RESEARCH
Published legal resources can be divided into three broad categories: (1)
primary sources or authorities, (2) secondary sources; and (3) index search,
or finding tools. All of these “published” legal
resources can appear in more than one format, including printed books,
electronic databases, digital images, microforms, compact disks (CD-ROMs
and DVDs), videos, and audiocassettes. Many resources contain more than
one type of information and serve more than one function. For example, some
electronic resources and looseleaf services include both primary authority and
secondary materials; they are, at the same time, designed to be finding tools.
An understanding of how legal materials are structured and organized
(regardless of the media in which they are published) is necessary to effective
legal research.
1. Primary Sources
2. Secondary Sources
Secondary sources are materials about the law that are used to explain,
interpret, develop, locate, or update primary sources. These sources are
published both in paper and electronic formats. The major types of secondary
sources are treatises, restatements, looseleaf services, legislative histories,
law reviews and other legal periodicals, legal encyclopedias, Supreme Court
Reports Annotated, and legal dictionaries. Secondary sources can be
11
Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent.
interpretative and may contain textual analysis, doctrinal syntheses, and
critical commentary of varying degrees of persuasiveness. Depending upon
the reputation of the author or publisher, some secondary sources, such as
restatements, scholarly treatises, and journal articles, are often persuasive to
a court. In contrast, practice manuals and legal encyclopedias have little
persuasive value but are useful for basic introductions to subjects, for concise
or “black letter” statements of legal rules, and for practical advice. Secondary
sources can be used as finding tools to locate other information. For example,
cases cited in treatises, law review articles, and encyclopedias can lead to
other cases.
Index, search, and fining tools help locate or update primary and
secondary sources. The major types of finding tools are digests (to locate
cases discussing similar points of law), annotations in annotated statutes and
codes, citators, and legal periodical indexes. Index, search, and finding tools
are not authority and should never be cited as such.
12
http://elibrary.judiciary.gov.ph/
13
http://www.chanrobles.com
14
http://www.lawphil.net
the Americans that a new field of literature came into being- forensic
literature.
15
Dominador D. Buhain, A History of Publishing in the Philippines
16
Milagros Santos-Ong (2009), Philippine Legal Research and Bibliography.
5. Evaluating Legal Resources
17
The 1987 Constitution of the Republic of the Philippines