Legal Research t534i

CHAPTER 1 AN INTRODUCTION TO LEGAL RESEARCH

Legal research is the process of identifying and retrieving the lawrelated information necessary to legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.

Many types of information are needed to legal decision-making. Although this book focuses on information sources that are concerned explicitly with law, legal decisions cannot be made out of their economic, social, historical, and political contexts. Today, legal decisions often involve business, scientific, medical, psychological, and technological information. Consequently, the process of legal research often involves investigation into other relevant disciplines.

This chapter, an introduction to legal research, explains why researchers seek certain types of information. This chapter explains the basic jurisprudential model upon which legal resources are designed, created, and collected, and introduces materials that are covered more comprehensively in subsequent chapters.

SECTION A. SOURCES OF LAW

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.

Finally, sources of law can refer to the published manifestations of the law. The books, electronic databases, microforms, optical disks (CD-ROMs and DVDs), and other media that contain legal information are all sources of law.

1.

The Nature of Legal Authority

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.

When the term is used to describe types of information, legal authority can be categorized as primary or secondary. Primary authorities are authorized statements of the law formulated by governmental institutions. Such authorities include the written opinions of courts ( case law), constitutions, legislations, rules of court, and the rules, regulations, and opinions of istrative agencies. Secondary authorities are statements 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.

When the term is used to describe the degree of persuasiveness of legal information, authority is an estimation of the power of information to influence a legal decision. In this sense, authority can be termed binding (also called mandatory) meaning that a court or other decision-maker can, if so persuaded, follow it.

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.

The Common Law Tradition

The Philippine legal system is a combination of continental civil law and the Anglo-American common law system. The Philippines gained autonomous status from the United States in 1935 when the first Philippine Constitution was implemented. The present constitution originates from 1987 and is similar to the US constitution. The Philippine justice system is comprised of the Supreme Court, the Court of Appeals, the regional trial courts, the Court of Tax appeals and the metropolitan and municipal trial courts.2 The common law is the body of law that originated and developed in England and spread to those countries that England settled or controlled. Historically, the common law was considered to be the “unwritten law” and was 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.

However, neither English nor American common law is in force in the Philippines, nor are the doctrines derived therefrom binding upon Philippine courts, save only in so far as they founded on sound principles applicable to local conditions, and are not in conflict with existing law.3

3.

Case Law and the Doctrine of Precedent

a. Structure of the Court System. On the national level, in the Philippines, there are hierarchical judicial systems in which some courts have jurisdiction, or control, over other courts. The typical court structure consists 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.

Trial courts are courts of original jurisdiction that make determinations of law and of fact, with juries often making the determinations of fact. Documents prepared by the parties, called pleadings (complaint, answer, interrogatories, among others) and motions, are filed before, during, and after a trial; exhibits are submitted into evidence during the trial; and a record (or transcript) is made. Although pleadings, motions, exhibits, and records were usually only available directly from the court in which the litigation was conducted, some of these documents are now obtainable electronically from various governmental and commercial sources. After a trial, the trial court issues a judgment or decision and sometimes a written opinion; the opinions of trial courts are infrequently published, reported, or otherwise made generally available to the public.

Intermediate appellate courts, often called circuit courts or courts of appeal have authority over lower courts within a specified geographical area or jurisdiction. Appellate courts generally will not review factual determinations made by lower courts, but will review claimed errors of law that are reflected in the record created in the lower courts. Appellate courts accept written briefs (statements prepared by the counsel arguing the case) and frequently hear oral arguments. Some large law libraries collect copies of the briefs filed in appellate courts. Intermediate appellate courts often issue written opinions that are sometimes published and found in law libraries and electronic sources. Many appellate courts have the discretion to determine on a case-by-case basis whether to publish opinions. Rules of court in each jurisdiction specify whether “unpublished” onions can be cited as authority. A court of last resort, typically called a supreme court, is the highest appellate court in a jurisdiction. The Supreme Court of the Philippines is the highest authority on questions of law. Many libraries make available in paper or electronic formal copies of the briefs and records filed in the Supreme Court of the Philippines and of the court of last resort in the state in which they are located. Transcripts of the oral arguments in these courts also are available in

some law libraries and on the Internet. Courts of last resort usually issue written opinions that are almost always published, collected by libraries and made available electronically. b. Philippine Judiciary Jurisdiction. The Constitution of the Philippines ordains that judicial power shall be vested in one Supreme Court and such lower courts as may be established by law."4 Currently, the national court system consists of four level: local and regional trial courts; a national court of appelas divided into 17 divisions; the 15 member Supreme Court; and an informal local system for arbitrary or mediating certain disputes outside the formal court system. A Shari'ah (Islamic law) court system, with jurisdiction over domestic and contractual relations over Muslim citizens, operates in some Mindanao provinces.5

c. Precedent. In the early history of English law, the custom developed of considering the decisions of courts to be precedents that would serve as examples, or authorities, for decisions in later cases with similar questions of law. Under what has come to be called the doctrine of precedent, the decision of a common law court not only settles a dispute between the parties involved but also sets a precedent to be followed in future cases. According to an older, now discredited, theory, judges merely declared what had always been the law when they decided a case. It is now generally acknowledged that judges often create new law when applying precedent to current problems.

The doctrine of precedent is closely related to three other concepts represented by the Latin stare decisis, ratio decidendi, and dictum. Stare decises, literally “to stand on what has been decided,” is the principle that the decision of a court is binding authority on the court that issued the decision and on lower courts in the same jurisdiction for the disposition of factually similar controversies. The decisions of a trial court can control future decisions of that trial court, but they do not control other trial courts or 4

Art VIII, Sec. 1 of the 1987 Constitution of the Republic of the Philippines Taken from http://www.nationsencyclopedia.com/asia-and-oceania/philippine-judicial-system.html (last visited on July 21, 2011) 5

appellate courts. Appellate courts can bind themselves and lower courts over which they have appellate jurisdiction, but appellate courts cannot bind other appellate courts at the same level. 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.

In contrast, dictum (or obiter dictum) is language in an opinion that is not necessary to the decision. Dictum comes from the Latin verb decire, “to say, “and refer to what is “said by the way,” that which not essential to the holding of the court. Although language categorized as dictum is not binding on future courts, it might be persuasive. Yesterday's dictum may develop into today's doctrine.

Thus, an obiter dictum is an opinion "uttered by the way, not upon the point or question pending, as if turning aside from the main topic of the case to collateral subjects"6 It is often difficult to distinguish the Ratio decidendi of a case from dictum. The determination of what is the ratio decidendi, and what is dictum, is a focus of much legal analysis and is often the critical point of legal argument. Courts have much leeway in interpreting case spur forth as binding precedent. No two cases are exactly the same, and, on one or more points, every case can be distinguished from others. Generally, a case is considered binding it it shares the same significant fact with the case at issue and does 6

G.R. No. L-4316. May 28, 1952

not differ in any significant facts from the instant case. Furthermore, similar issues must be presented in the two cases and the resolution of those issues must have been necessary to the decision in the previous case (otherwise, the words of the court would be dictum). Courts can reject cases put forth as binding authority by distinguishing the cases on their facts or issues, thus finding that the previous cases are different from the instant case in some significant way. In some situations, a court can avoid being bound by a previous case by finding that the rule put forth in the previous case is no longer valid and overruling it. By the common law doctrine of precedent or principle of stare decisis, decided cases are usually considered to be the primary source of law and hence, past judicial decisions are generally binding for the disposition of factually similar present controversies. 7

Having been under the American rule, the Philippines although primarily a “civil law country has adopted the doctrine of precedent or stare decisis. 8

As a matter of fact, Art. 8 of the New Civil Code specifically provides:

“Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines (n).”

Hence, judicial decisions or judicial precedents form part of the legal system of the Philippines.

7 8

Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent. 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

Policy considerations ing the doctrine of precedent include the resulting fairness, as it encourages similar cases to be treated similarly; the predictability and stability it encourages within the legal system; and its efficiency in of time and energy as it enables decision-makers to take advantage of previous efforts and prior wisdom. Critics argue that a reliance on precedent can result in a rigid and mechanical jurisprudence that can force us to treat unlike cases as if they were similar; that the doctrine of precedent can perpetuate outmoded rules; and that its inherently conservative nature can impede the law from being responsive to new social needs. Notwithstanding these criticisms, the doctrine of precedent remains the foundation upon which our models of legal research are constructed. The written opinions of courts, particularly appellate courts, are the “stuff” of legal argument and the major source of legal doctrine. Consequently, they are the primary, but certainly not the only, objects of legal research. Law libraries and legal electronic databases are filled with published court opinions, along with secondary sources and index tools to help researchers find, interpret, and update opinions that are relevant to particular fact patterns.

4.

Legislation and the Interpretation of Statutes

a. Legislation. A Statute, sometimes referred to as legislation, is an act of legislature as an organized body, expressed in the form, 9

and ed according to the procedure, required to constitute it as part of the law of the land. Statutes enacted by the legislature are those ed 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.

Statutes, and collections of statutes arranged by subject called codes, have become very important in civil law systems; and American law combines both statutory and case law. Statutes are used to create new areas of law; to fill gaps in the law; and to change court-made rules. Like other civil law system countries, in the Philippine legal system it is pressumed that a stature will apply to every legal problem or that codes are comprehensive statements of the law.

b. Statutory interpretation. Courts play predominant roles in interpreting and applying statues and in extending the law to subjects not expressly covered by statutes. The legislature may state a general legal rule 10

Ruben E. Agpalo, Statutory Construction, Chapter 1: Statutes.

in the form of a statute, but it is the judiciary that interprets the general rule and applies it to specific cases. Under the doctrine of precedent, it is the statute as interpreted by the courts that us applied in the next case. In theory, if the legislature disagrees with the way a court has interpreted a statue, the legislature should revise the statute. Statutory interpretation is an important part of legal research. Researchers must not find only the statutes applicable to a problem, but also must find information that will help determine what the statutes mean and how they should be applied. After looking for the “plain meaning” of the words of a statute, and applying traditional canons or principles of statutory interpretation to the text of the statute, researchers resort to a number of approaches to statutory interpretation.

An important method of statutory interpretation is to look for judicial opinions that have construed the specific statute. The persuasiveness of interpretative opinions depends on the similarity of facts involved and on the courts issuing the opinions. Legislatures sometimes laws that are designed to reflect existing common law rules; in such situations judicial opinions that pre-date the statute are useful aids to interpretation.

Researchers often attempt to identify the legislature’s purpose in ing a statute and the legislatures intended meaning for specific statutory provisions. To do this, researchers look at the legislative history of the statuedocuments, such as the original bill and revisions thereto, revised versions of bills and legislative debates, hearings, reports and other materials, created by the legislature while the statue was under consideration-for evidence of legislative purpose and intent. Although controversy exists over their proper use, legislative histories are often consulted by lawyers and judges and are frequently used in legal argument.

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.

istrative law

The third major institutional source of law is the executive Branch of government. The President of the Philippines and the provincial governors issue orders and create other documents with legal effect. Executive departments and offices, and istrative agencies, establishments, and corporations all create legal information.

istrative agencies, which exist on a national level, are created by the legislative branch of government and are usually part of the executive branch. A number of independent agencies, establishments, and corporations exist within the executive branch but are not considered to be executive departments. For the most part, local agencies handle matters of local law and national agencies handle matters of national law. but there is often interaction between local and national agencies. istrative agencies conduct activities that are in nature both legislative and adjudicative, as well as executive. under the authority of a statute, these agencies often create and publish rules and regulations that further interpret a statute. Agencies may also make determinations of law and fact in controversies arising under the statue and, like courts, publish opinions.

istrative 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 istrative agency, but they will also need to find, interpret, and update the legislation the agency is istering and judicial opinions that interpret those rules, istrative 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

As noted earlier in this chapter, primary sources are authoritative statements of legal rules by governmental bodies. They include Constitutions, statutes, court decisions, istrative rules and scholarly commentaries11. Because many primary sources are published in the order they are issued with little or no subject access, secondary sources and indexing tools are needed to identify and retrieve them.

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.

3.

Index, Search, and Finding Tools

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.

Looseleaf services and computer-assisted legal research (CALR) systems, such as Supreme Court E-library12, Chan Robles Virtual Law Library13, Arellano Foundation14, are among the most valuable finding tools. They must be distinguished from other finding tools because they contain the full text of primary authorities, as well as materials from secondary sources. 4.

Philippine Law Publishing

a. Proliferation of Materials. Practically no distinctive Philippine legal bibliography was written during the Spanish era. Only folios of royal decrees and orders plus a few codes were recorded. The reason behind this is that the legal profession did not exert much influence at that time as did the priestly vocation. It was only during the advent of 12

http://elibrary.judiciary.gov.ph/ http://www.chanrobles.com 14 http://www.lawphil.net 13

the Americans that a new field of literature came into being- forensic literature.

In 1903, Pedro Paterno published in Madrid, El Regimen Municipal de las Islas and Gobierno Civil de las Islas Filipinas, manual del ciudadano Filipino, in 1910.

The earliest digest of Supreme Court decisions entitled Manual de Jurisprudencia was published in 1915 by the National Press with a prologue Emiliano Tria Tirona.

Philippine Supreme court justice George A. Malcolm, dean of the University of the Philippines College of Law, came out with a tome, the Government of the Philippine Islands, a lawyer’s cooperative publication in 1916. Jorge C. Bacobo succeeded Malcolm as the U.P. law dean and became the Chairman of the Code Commission that produced for the Philippines a new civil code in 1950. He was also known as the ”Father of the First Brown Race Civil Code.” Justice J. B. L. Reyes, a noted expert in civil law, wrote a four-volume book entitled Outline in Civil Law with Justice Ricardo C. Puno as co-author. Notable compilations and indices were published by government bureaus like the Bureau of Lands, Bureau of Justice, Bureau of Posts and Bureau of Buildings.15 b. Official and Unofficial Publications. Legal publishers in the Philippines are institutional like the National Printing Office, Supreme Court and UP law Center. Commercial publishers are Anvil Publications, Central Books Supply and National bookstore but from a small store in 1950, Rex Book Store has grown into the country's largest publisher of local legal book titles. It is doing business through ten branches strategically located in Manila, Eastern and Western Visayas, and in Mindanao.16 15 16

Dominador D. Buhain, A History of Publishing in the Philippines Milagros Santos-Ong (2009), Philippine Legal Research and Bibliography.

5.

Evaluating Legal Resources

When inspecting and evaluating legal resources, it is important to determine and understand the purposes the resources were designed to serve. An awareness of the functions, features, interrelationships, strengths, and weaknesses of resources, whether they are traditional paper resources or electronic resources, is valuable for effectively conducting legal research. Is the resource part of a set, or is it designed to be used with other resources? Does it have finding tools or special features, such as indexes and tables? Is the text searchable electronically? How is the resource updated, and when was it last updated? The credibility of the author, editor, publisher, ort producer should be considered, together with the types of authority (primary and secondary) included and the potential persuasiveness of the authority. With the expansion of resources available on the World Wibe Web, evaluating the resources for accuracy, credibility, and currency is increasingly important.

SECTION C. AN ESSENTIAL SKILL

In 1992, a special task force of the American Bar Association on law schools and the legal profession issued a report that stated that “[i]t can hardly be doubted that the ability to do legal research is one of the skills that any competent practitioner must possess.| That report also stated that “[i]n order to conduct legal research effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the fundamental tools of legal research, and the process of devising and implementing a coherent and effective research design.|

Furthermore, the ABA's Model Rules of Professional Conduct provide: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

Clearly, a lawyer must be able to research the law to provide competent representation. In addition to issues of professional responsibility, questions relating to competency in legal research may arise in legal malpractice actions in which an attorney is sued for failing to know “those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover the additional rules which, although not commonly known, may readily be found by standard research techniques.” Issues relating to an attorney's competence in legal research also have been raised in claims for malicious prosecutions, and in claimed violations of the Constitutional17 right to effective assistance of counsel.

The ability to use fundamental legal research tools and to implement an effective and efficient research plan must become part of every lawyer's training if she or he is to provide competent representation and uphold the standards of the legal profession.

17

The 1987 Constitution of the Republic of the Philippines