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 (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),

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

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

2
Taken from http:// www.remburssi.org/projects/philippines/legal.htm (last visited on July 21, 2011)
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
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

3
G.R. No. L-4504. December 15, 1908
 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."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 terms stare decisis, ratio decidendi, and dictum.
Stare decises, literally “to stand on what has been decided,” is the principle
4
Art VIII, Sec. 1 of the 1987 Constitution of the Republic of the Philippines
5
Taken from http://www.nationsencyclopedia.com/asia-and-oceania/philippine-judicial-system.html (last visited on
July 21, 2011)
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"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.

6
G.R. No. L-4316. May 28, 1952
 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
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).”

7
Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent.
8
Ibid.
 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.

9
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.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.
10
Ruben E. Agpalo, Statutory Construction, Chapter 1: Statutes.
 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
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 legislature’s 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 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. 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” 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, administrative 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

11
Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent.
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 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

12
http://elibrary.judiciary.gov.ph/
13
http://www.chanrobles.com
14
http://www.lawphil.net
 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 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

15
Dominador D. Buhain, A History of Publishing in the Philippines
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

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

16
Milagros Santos-Ong (2009), Philippine Legal Research and Bibliography.
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