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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. 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 administrative agencies.
Secondary authorities are statements about the law and are used to explain,
interpret, develop, locate or
updateprimary authorities. Treaties, articles in law reviews and other scholarly journ
als, Supreme Court Reports Annotated (SCRA), restatements of the law, and loose
leaf 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
calledmandatory) meaning that a court or other decision-maker can, if so

persuaded, follow it. Only primary authority can be binding; but some primary
authority
willbe merely persuasive, depending on the source of the authority and itscontent.
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 exercisewi
de 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 AngloAmerican common law system. The Philippines gained autonomous
status from the United States in 1935 when thefirst Philippine Constitution was impl
emented. The present constitution originates from 1987 and is similar to the US con
stitution. 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. 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
handeddown from generation to generation and was eventually reflected in therepo
rts 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 lawtradition, which is
based on Roman law and predominates in continentalEurope 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 arediscoverable
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.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 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." 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 nover domestic and contractual relations over
Muslim citizens, operates in some Mindanao provinces.
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 theholding 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" 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 legalargument.Cou
rts 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 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 aprevious 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.
Having been under the American rule, the Philippines although primarily a
civil law country has adopted the doctrine of precedent or stare decisis.
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 practicebeen considered so not because of lack of
regard to these decisions but primarily because these decisions are largely not
reported or published.
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
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
presumed 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 note expressly covered by
statutes. The legislature may state a general legal rule 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 pass 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 legislatures purpose in passing a


statute and the legislatures intended meaning for specific statutory provisions. To
do this, researchers look at the legislative history of the statue-documents, such as
the original bill and revisions thereto, revised versions of bills and legislative
debates, hearings, reports and other materials, created byt he 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 wellreasoned 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. 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 administrative agencies, establishments, and
corporations all create legal information. Administrative 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.
Administrative 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. 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 legalresources can appear in more than one
format, including printed books,electronic databases, digital images, microforms,
compact disks (CD-ROMsand DVDs), videos, and audiocassettes. Many resources
contain more thanone type of information and serve more than one function. For
example, someelectronic resources and looseleaf services include both primary
authority andsecondary 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
effectivelegal 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, administrative rules and scholarly
commentaries. 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, loose leaf services, legislative
histories, law reviews and other legal periodicals, legal encyclopedias, 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. Depending uponthe reputation
of the author or publisher, some secondary sources, such asrestatements, scholarly
treatises, and journal articles, are often persuasive toa court. In contrast, practice
manuals and legal encyclopedias have littlepersuasive value but are useful for basic
introductions to subjects, for conciseor black letter statements of legal rules, and
for practical advice. Secondarysources can be used as finding tools to locate other
information. For example,cases cited in treatises, law review articles, and
encyclopedias can lead toother 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 locatecases 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-library , Chan Robles Virtual Law
Library , 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 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 lawyers 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 Postsand Bureau of Buildings.
b. Official and Unofficial Publications. Legal publishers in thePhilippines are
institutional like the National Printing Office, SupremeCourt 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'slargest publisher of local legal book

titles. It is doing businessthrough ten branches strategically located in


Manila, Eastern and Western Visayas, and in Mindanao.
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
(primaryand 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 laws chools 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 skills thatany 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 formalicious
prosecutions, and in claimed violations of the Constitutional 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.