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LEGAL RESEARCH

CHAPTER 1

AN INTRODUCTION TO LEGAL RESEARCH

Legal research is the process of identifying and retrieving the law- relatedinformation necessary to support legal decision-making. In its broadestsense, legal research includes each step of a course of action that beginswith an analysis of the facts of a problem and concludes with theapplication and communication of the results of the investigation.

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

This chapter, an introduction to legal research, explains why researchersseek 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 morecomprehensively 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” canrefers to three different concepts. In one sense, the term sources of lawrefers to the origins of legal concepts and ideas. Custom, tradition,principles of morality, and economic, political, philosophical, and religiousthought may manifest themselves in law. Legal research frequently mustextend to these areas, especially when historical or policy issues areinvolved.

The term sources of law can also refer to the governmental institutionsthat formulate legal rules. The Philippines is a democratic and republicanState.

1 Although there are some variations in their structures, each of

these governments has legislative, executive, and judicial componentsthat interact with one another. Because all three branches of government“make law” and create legal information that is the subject of legalresearch, researchers must understand the types of information createdby each branch and the processes through which that information iscreated.

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 allsources 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 legaldecisions. 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 authoritycan be categorized as primary or secondary. Primary authorities areauthorized 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, andopinions of administrative agencies. Secondary authorities are statementsabout the law and are used to explain, interpret, develop, locate or updateprimary authorities. Treaties, articles in law reviews and other scholarly

journals, Supreme Court Reports Annotated (SCRA), restatements of thelaw, and looseleaf services are examples of secondary authorities.

When the term is used to describe the degree of persuasiveness of legalinformation, authority is an estimation of the power of information toinfluence 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.



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Only primary authority can be binding; but some primary authority will bemerely persuasive, depending on the source of the authority and itscontent. Secondary authority can never be binding, but can bepersuasive. The application of legal authority to individual problems is acomplex and often controversial process. Variations in the facts of individual cases enable judges, influenced by their own philosophies andperspectives, to exercise wide discretion in interpreting and applying legalauthority.

2.

The Common Law Tradition

The Philippine legal system is a combination of continental civil law andthe Anglo-American common law system. The Philippines gainedautonomous status from the United States in 1935 when the firstPhilippine Constitution was implemented. The present constitutionoriginates 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 metropolitanand municipal trial courts. 2

The common law is the body of law that originated and developed inEngland and spread to those countries that England settled or controlled.Historically, the common law was considered to be the “unwritten law”and was distinguished from the “written”, or statutory, law. The commonlaw was an oral tradition derived from the general customs, principles,and rules handed down from generation to generation and was eventuallyreflected in the reports of the decisions of courts. The English commonlaw 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 Europeand other western countries. Common and civil law systems differ in their theories about the source of law, the relative persuasiveness of thesources, 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, thelegislature creates a comprehensive code of legal principles that

represents the highest form of law, and there is a presumption that codeprovisions apply to every legal problem. In the Philippines, there is nopresumption that statutes or codes cover all legal problems; many legalprinciples are discoverable only through the unwritten, or customs.

However, neither English nor American common law is in force in thePhilippines, nor are the doctrines derived therefrom binding uponPhilippine courts, save only in so far as they founded on sound principles

applicable to local conditions, and are not in conflict with existing law3

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 structureconsists 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, andafter a trial; exhibits are submitted into evidence during the trial; and arecord (or transcript) is made. Although pleadings, motions, exhibits, andrecords were usually only available directly from the court in which thelitigation was conducted, some of these documents are now obtainableelectronically from various governmental and commercial sources. After atrial, the trial court issues a judgment or decision and sometimes a writtenopinion; 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 geographicalarea or jurisdiction. Appellate courts generally will not review factualdeterminations made by lower courts, but will review claimed errors of lawthat are reflected in the record created in the lower courts. Appellatecourts accept written briefs (statements prepared by the counsel arguing



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the case) and frequently hear oral arguments. Some large law librariescollect copies of the briefs filed in appellate courts. Intermediate appellatecourts often issue written opinions that are sometimes published andfound in law libraries and electronic sources. Many appellate courts havethe discretion to determine on a case-by-case basis whether to publishopinions. 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 highestappellate court in a jurisdiction. The Supreme Court of the Philippines isthe highest authority on questions of law. Many libraries make available inpaper or electronic formal copies of the briefs and records filed in theSupreme Court of the Philippines and of the court of last resort in thestate in which they are located. Transcripts of the oral arguments in thesecourts also are available in some law libraries and on the Internet. Courtsof last resort usually issue written opinions that are almost alwayspublished, 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 andsuch lower courts as may be established by law."

4Currently, the national

court system consists of four level: local and regional trial courts; anational court of appelas divided into 17 divisions; the 15 member Supreme Court; and an informal local system for arbitrary or mediatingcertain disputes outside the formal court system. A Shari'ah (Islamic law)court system, with jurisdiction over domestic and contractual relationsover Muslim citizens, operates in some Mindanao provinces

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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 disputebetween the parties involved but also sets a precedent to be followed infuture cases. According to an older, now discredited, theory, judgesmerely declared what had always been the law when they decided acase. It is now generally acknowledged that judges often create new lawwhen applying precedent to current problems.

The doctrine of precedent is closely related to three other conceptsrepresented by the Latin terms stare decisis, ratio decidendi, and dictum.

Stare decises, literally “to stand on what has been decided,” is theprinciple that the decision of a court is binding authority on the court thatissued the decision and on lower courts in the same jurisdiction for thedisposition of factually similar controversies. The decisions of a trial courtcan control future decisions of that trial court, but they do not control other trial courts or

appellate courts. Appellate courts can bind themselves and lower courts

over which they have appellate jurisdiction, but appellate courts cannotbind other appellate courts at the same level.

The ratio decidendi is the holding or the principle of law on which the casewas decided. It is the ratio decidendi that sets the precedent and isbinding on courts in the future. Unlike legislatures, American courts do notpromulgate general propositions of law, nor do they respond tohypothetical questions. Rather, courts decide actual cases andcontroversies, and the rules they announce are tied to specific factsituations. Therefore, the ratio decidendi, or rule of the case, must beconsidered in conjunction with the facts of the case.

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

Thus, an obiter dictum is an opinion "uttered by the way, not upon thepoint or question pending, as if turning aside from the main topic of thecase to collateral subjects" 5

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 afocus of much legal analysis and is often the critical point of legalargument.

Courts have much leeway in interpreting case spur forth as bindingprecedent. No two cases are exactly the same, and, on one or morepoints, every case can be distinguished from others. Generally, a case is



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considered binding it it shares the same significant fact with the case atissue and does

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 previouscase (otherwise, the words of the court would be dictum). Courts canreject cases put forth as binding authority by distinguishing the cases on

their facts or issues, thus finding that the previous cases are differentfrom the instant case in some significant way. In some situations, a courtcan avoid being bound by a previous case by finding that the rule putforth 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 andhence, past judicial decisions are generally binding for the disposition of factually similar present controversies.

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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 theConstitution shall form part of the legal system of the Philippines (n).”

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

Decisions of the Supreme Court are treated as such. However, finaldecisions of the Court of Appeals which under the common law doctrineshould be binding before lower courts, have not in practice beenconsidered so not because of lack of regard to these decisions butprimarily because these decisions are largely not reported or published 9

Policy considerations supporting the doctrine of precedent include theresulting fairness, as it encourages similar cases to be treated similarly;the predictability and stability it encourages within the legal system; andits efficiency in terms of time and energy as it enables decision-makers totake advantage of previous efforts and prior wisdom. Critics argue that a

reliance on precedent can result in a rigid and mechanical jurisprudencethat can force us to treat unlike cases as if they were similar; that thedoctrine of precedent can perpetuate outmoded rules; and that itsinherently conservative nature can impede the law from being responsiveto new social needs.

Notwithstanding these criticisms, the doctrine of precedent remains thefoundation 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 courtopinions, along with secondary sources and index tools to helpresearchers find, interpret, and update opinions that are relevant toparticular 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, and passedaccording to the procedure, required to constitute it as part of the law of the land. Statutes enacted by the legislature are those passed by thePhilippine Commission, the Philippine Legislature, the BatasangPambansa, and the Congress of the Philippines.

7In comparison, a

constitution is the fundamental body of principles, most often written, bywhich a political body, such as a nation or state, governs itself. Becausemany of the basic concepts and techniques of statutory and constitutionalresearch are similar, they can be discussed together at an introductory

level. However, the Philippine Constitution, is a pervasive and specializedsubject; including it in a general discussion of legislation should notobscure either its importance or its uniqueness.

In English law, the king enacted the earliest statues with the concurrenceof his council; later, the role of stature-maker was assumed byParliament. In the Philippines, statues are enacted by the legislativebranch and signed into law by the chief executive. The growth of statutorylaw has reflected the impact of the industrial revolution , as it becameapparent that a jurisprudence based only on judicial decisions could not



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meet the needs of a growing dynamic society. Situations developed inwhich answers were needed that were not found in court reports, or theanswers 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 lawcombines 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. Likeother civil law system countries, in the Philippine legal system it ispressumed that a stature will apply to every legal problem or that codesare comprehensive statements of the law.

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

in the form of a statute, but it is the judiciary that interprets the generalrule 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. Intheory, if the legislature disagrees with the way a court has interpreted astatue, 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, butalso must find information that will help determine what the statutes meanand 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 anumber of approaches to statutory interpretation.

An important method of statutory interpretation is to look for judicialopinions that have construed the specific statute. The persuasiveness of interpretative opinions depends on the similarity of facts involved and onthe courts issuing the opinions. Legislatures sometimes pass laws thatare 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 passinga statute and the legislatures intended meaning for specific statutory

provisions. To do this, researchers look at the legislative history of thestatuedocuments, such as the original bill and revisions thereto, revisedversions 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. Althoughcontroversy exists over their proper use, legislative histories are oftenconsulted by lawyers and judges and are frequently used in legalargument.

Researchers also search for cases from other jurisdictions that haveinterpreted similar statutes. Although these opinions are not bindingauthority, well-reasoned opinions from other courts can be verypersuasive. This approach is consisted with the doctrine of precedent,under which the decisions of other common law courts may beconsidered, even if they are not binding.

5.

Administrative law

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

Administrative agencies, which exist on a national level, are created bythe legislative branch of government and are usually part of the executivebranch.

A number of independent agencies, establishments, and corporationsexist within the executive branch but are not considered to be executivedepartments. For the most part, local agencies handle matters of locallaw and national agencies handle matters of national law. but there isoften interaction between local and national agencies. Administrativeagencies conduct activities that are in nature both legislative andadjudicative, as well as executive. under the authority of a statute, theseagencies often create and publish rules and regulations that further interpret a statute. Agencies may also make determinations of law and



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fact in controversies arising under the statue and, like courts, publishopinions.

Administrative law can be a very complex area to research. Not only willresearchers need to find, interpret, and update the rules, regulations, anddecisions created by the administrative agency, but they will also need tofind, 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) indexsearch, or finding tools. All of these “published” legal resources canappear in more than one format, including printed books, electronicdatabases, digital images, microforms, compact disks (CD-ROMs andDVDs), videos, and audiocassettes. Many resources contain more thanone type of information and serve more than one function. For example,

some electronic resources and looseleaf services include both primaryauthority and secondary materials; they are, at the same time, designedto be finding tools. An understanding of how legal materials are structuredand organized (regardless of the media in which they are published) isnecessary to effective legal research.

1.

Primary Sources

As noted earlier in this chapter, primary sources are authoritativestatements of legal rules by governmental bodies. They include

Constitutions, statutes, court decisions, administrative rules and scholarlycommentaries 11

. Because many primary sources are published in the order they areissued with little or no subject access, secondary sources and indexingtools 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 arepublished 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, legalencyclopedias, Supreme Court Reports Annotated, and legal dictionaries.

Secondary sources can be

interpretative and may contain textual analysis, doctrinal syntheses, andcritical commentary of varying degrees of persuasiveness. Dependingupon the reputation of the author or publisher, some secondary sources,such as restatements, scholarly treatises, and journal articles, are oftenpersuasive to a court. In contrast, practice manuals and legalencyclopedias have little persuasive value but are useful for basicintroductions to subjects, for concise or “black letter” statements of legalrules, and for practical advice. Secondary sources can be used as findingtools 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 andsecondary sources. The major types of finding tools are digests (to locatecases discussing similar points of law), annotations in annotated statutesand codes, citators, and legal periodical indexes. Index, search, andfinding 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-library

2

Chan Robles Virtual Law Library1

, Arellano Foundation4

are among the most valuable finding tools. They must bedistinguished from other finding tools because they contain the fulltext of primary authorities, as well as materials from secondarysources.



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4.

Philippine Law Publishing

a.Proliferation of Materials. Practically no distinctive Philippine legalbibliography was written during the Spanish era. Only folios of royaldecrees and orders plus a few codes were recorded. The reason behindthis 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

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

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

The earliest digest of Supreme Court decisions entitled Manua deJurisprudencia was published in 1915 by the National Press with a

prologue Emiliano Tria Tirona.

Philippine Supreme court justice George A. Malcolm, dean of theUniversity of the Philippines College of Law, came out with a tome, theGovernment of the Philippine Islands, a lawyer’s cooperative publicationin 1916. Jorge C. Bacobo succeeded Malcolm as the U.P. law dean andbecame the Chairman of the Code Commission that produced for thePhilippines 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 incivil law, wrote a four-volume book entitled Outline in Civil Law withJustice Ricardo C. Puno as co-author.

Notable compilations and indices were published by government bureauslike the Bureau of Lands, Bureau of Justice, Bureau of Posts and Bureauof Buildings 1

b. Official and Unofficial Publications. Legal publishers in the Philippinesare institutional like the National Printing Office, Supreme Court and UPlaw Center. Commercial publishers are Anvil Publications, Central BooksSupply and National bookstore but from a small store in 1950, Rex BookStore has grown into the country's largest publisher of local legal book

titles. It is doing business through ten branches strategically located inManila, Eastern and Western Visayas, and in Mindanao

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5.

Evaluating Legal Resources

When inspecting and evaluating legal resources, it is important to

determine and understand the purposes the resources were designed toserve. An awareness of the functions, features, interrelationships,strengths, and weaknesses of resources, whether they are traditionalpaper resources or electronic resources, is valuable for effectivelyconducting legal research. Is the resource part of a set, or is it designedto be used with other resources? Does it have finding tools or specialfeatures, such as indexes and tables? Is the text searchableelectronically? How is the resource updated, and when was it lastupdated? The credibility of the author, editor, publisher, ort producer should be considered, together with the types of authority (primary andsecondary) 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 isincreasingly important.

SECTION C. AN ESSENTIAL SKILL

In 1992, a special task force of the American Bar Association on lawschools and the legal profession issued a report that stated that “[i]t canhardly be doubted that the ability to do legal research is one of the skillsthat any competent practitioner must possess.| That report also statedthat “[i]n order to conduct legal research effectively, a lawyer should have

a working knowledge of the nature of legal rules and legal institutions, thefundamental tools of legal research, and the process of devising andimplementing a coherent and effective research design.|

Furthermore, the ABA's Model Rules of Professional Conduct provide: “Alawyer shall provide competent representation to a client. Competentrepresentation requires the legal knowledge, skill, thoroughness, andpreparation reasonably necessary for the representation.”



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Clearly, a lawyer must be able to research the law to provide competentrepresentation. In addition to issues of professional responsibility,questions relating to competency in legal research may arise in legalmalpractice actions in which an attorney is sued for failing to know “thoseplain and elementary principles of law which are commonly known bywell-informed attorneys, and to discover the additional rules which,although not commonly known, may readily be found by standardresearch techniques.” Issues relating to an attorney's competence in legal

research also have been raised in claims for malicious prosecutions, andin claimed violations of the Constitutiona8right to effective assistance of

counsel.

The ability to use fundamental legal research tools and to implement aneffective and efficient research plan must become part of every lawyer'straining if she or he is to provide competent representation and uphold thestandards of the legal profession.

1 Art. II, Sec. 1 of the 1987 Constitution of the Republic of the Philippines2

Taken from http:// www.remburssi.org/projects/philippines/legal.htm (last

visited on July 21, 20113G.R. No. L-4504. December 15, 190

4 Art VIII, Sec. 1 of the 1987 Constitution of the Republic of the Philippine

5 Taken from http://www.nationsencyclopedia.com/asia-and-oceania/philippine-judicial-system.html (last visited on July 21, 2011)5

G.R. No. L-4316. May 28, 1956

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

8Ibid.

7Ruben E. Agpalo, Statutory Construction, Chapter 1: Statutes

8The 1987 Constitution of the Republic of the Philippine

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