LEGAL RESEARCH CHAPTER 1 AN INTRODUCTION TO LEGAL RESEARCH Legal research is the process of identifying and retrieving the law-

related information necessary to support 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 support 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 (CDROMs 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 administrative agencies. Secondary authorities are statements 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.

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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.

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.

The Common Law Tradition Case Law and the Doctrine of Precedent 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 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 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 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
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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." 4Currently, 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 terms 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 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" 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 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

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considered binding it it shares the same significant fact with the case at issue 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 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. 6 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. 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 supporting 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 terms 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, 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. 7 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
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