UNIT 6: INTRODUCTION TO LEGAL RESEARCH

Contents

6.0. Aims and Objectives

6.1. Introduction
6.2. Concept and Importance of Legal Research
6.3. Flexibility in Legal Research
6.4. Authorities in Legal Research
6.5. Summary
6.6. Answers Key to Check Your Progress Exercises
6.7. Model Examination Questions
6.8. Glossary
6.9. Selected References

6.0 AIMS AND OBJECTIVES

After completing this unit, students are expected to understand:

- as to what legal research is.
- as to why legal research is necessary.
- as to why legal researchers should be flexible.
- as to what legal authorities are and their classifications.

6.1. INTRODUCTION

Legal research is an indispensable tool for legal professionals to unfold new laws and to reach
a certain conclusion. This unit tries to lay the foundations for legal research. To this end, it is
divided into three important sections. The first section tries to explain the concept and
importance of legal research while the second and third sections try to enlighten students
regarding flexibility in legal research and authorities that can be employed in legal research
respectively.

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6.2. CONCEPT AND IMPORTANCE OF LEGAL RESEARCH

Legal research is the investigation for information necessary to support legal decision making.
In its broadest sense, legal research includes each step of a process that begins with analyzing
the facts of a problem and concludes with applying and communicating the results of the
investigation.

The question worth raising at this juncture is: why do you want to do legal research? You will
eventually forget most of the law that you learn in school. No one can know all of the law at
any given time, even in a specialty. Furthermore, the law is always changing. Nothing is more
dangerous than someone with out-of-date "knowledge" of the law. Law cannot be practiced
on the basis of rules learned in school, since those rules may no longer be valid by the time
you try to use them in actual cases. Thousands of legislatures, and administrative agencies
spend considerable time writing new laws and changing or adapting old ones in our world.

The law library and the techniques of legal research are indispensable to keep in touch with
current laws. School teaches you to think. You teach yourself the law through the skill of
legal research. Every time you walk to the law library, you are your own professor. You must
accept nothing less than to become an expert on the topic of your research, no matter how
narrow the topic might be. The purpose of the law library is to enable you to become an
expert on the current law of your topic.

You have to bear in mind that you must not be reluctant to undertake legal research on a topic
simply because you know little about the topic. Knowing very little is often the most healthy
starting point for the research preconceptions about the law can sometimes lead away from
avenues in the library that you should be traveling.

To become an expert through comprehensive legal research does not necessarily mean that
you will know everything. Experts are able to provide answers, but equally important they
know how to formulate the questions that remain unanswered even after comprehensive legal
research.

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6.3. FLEXIBILITY IN LEGAL RESEARCH

In doing legal research, you sometimes do not know what you are looking for until you find it.
As researchers follow roads, they invariably come upon new avenues and thoughts that never
occurred to them initially. An entirely new approach to the problem may be uncovered that
radically changes their initial perceptions. They reach this stage not because they consciously
sought it out, but because they were flexible and open-minded enough to accept new
approaches and perceptions. This phenomenon is not peculiar to legal research.

To sum up, legal research cannot be done by pre-determined roads that lead to the required
destination. Rather, we have to adjust our movement in the course of doing our research so
that we will be capable of incorporating new things encountered along our roads. We have to
be flexible.

6.4. AUTHORITIES IN LEGAL RESEARCH

In doing a legal research, authorities are the indispensable tools as they are anything that we
rely on reaching a conclusion. Authorities are generally of two kinds: Primary authorities and
secondary authorities. Primary authority is any law that the court can rely on reaching its
conclusion. Examples include constitutions, proclamations, regulations, charters, treaties and
so on. Secondary authority is any non-law that the court can relay on in reaching its
conclusion. Examples include legal and non-legal encyclopedias, legal and non-legal
dictionaries, legal and non-legal treatises.

Authorities which we may use in legal research can be classified into mandatory and
persuasive authorities. Mandatory authority is whatever the court must rely on in reaching its
conclusion. Only primary authority such as another court opinion (in the case of common law
countries), a statute or a constitutional provision can be mandatory authority. A court is never
required to rely on secondary authority such as a law review articles, or a legal encyclopedia.
Secondary authority cannot be mandatory authority.

Persuasive authority is whatever the court relies on when it is not required to do so. In the
common law countries, such as the U.S.A, there are two main kinds of persuasive authority:
(a) a prior court opinion that the court is not required to follow but does so because it finds the

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opinion persuasive and (b) any secondary authority that the court is not required to follow but
does so because it finds the secondary authority persuasive.

Coming to Ethiopia, laws, made by the federal government and regional states, are mandatory
authorities. Since Ethiopia is not a common law country, prior court decisions cannot be taken
as mandatory authority. They may serve as persuasive authority. The difference between
mandatory authority and persuasive authority lies in the fact that laws as mandatory authority
must be strictly followed when we are doing a research. We may resort to secondary authority
optionally when we feel that such authorities are important for the purpose of persuasion.

Check Your Progress Exercise

1. Why is legal research necessary?
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2. Why are legal researchers expected to be flexible?
…………………………………………………………………………………………………
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3. What do you understand by authorities?
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4. Discuss the difference between mandatory authority and persuasive authority.
…………………………………………………………………………………………………
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………………………………………………………………………………………………….

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6.5. SUMMARY

Legal research is the process of making investigations and inquiries for information so that
the information investigated and inquired will be used for reaching a legal decision. No matter
how highly qualified legal professionals we are, we cannot dissociate ourselves from legal
research the reason being the fact that the law changes constantly in order to cope with
changes. Our legal education we have received from law schools only gives us the guidelines.
So, we have to keep in touch with legal research so as to equip ourselves with up to the
minute legal knowledge.

In doing our research, we have to be flexible as much as possible as we cannot determine

before hand what research methods and research tools, concepts and thoughts are essential for
our legal research.

Legal research will be a legal research only when it is supported by relevant legal and non-
legal authorities. Otherwise it will be a mere fiction that would be incapable of leading us to a
legal decision and conclusion. Hence our legal research should depend, to a larger extent, on
primary authority and when this is impossible on secondary authority.

6.6. GLOSSARY

Authority - citation to constitutions, statues, precedents, judicial decisions, rules, regulations,

textbooks, articles, and the like which are employed to support legal argument or which are
helpful in reaching a conclusion or a decision on the trial of cases before a court, in support of
the legal positions contented for, or adduced to fortify the opinion of a court or of a text writer
upon any question.

6.7. ANSWERS KEY TO CHECK YOUR PROGRESS EXERCISES

1. Normally, legal professionals forget what they have been taught at law schools, no
matter how seriously they have been taught and no matter how strongly they have studied
the law. Moreover, the law is characterized by constant changes attributable to the
dynamic nature of society. So, to refresh their memories and to acquaint themselves with

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 the newly passed laws, legal professionals should engage in legal research. That is why
legal research is necessary.
2. Refer Section 6.3.
3. Refer Section 6.4.
4. Refer Section 6.4.

6.8 MODEL EXAMINATION QUESTIONS

1. What do you understand by primary authority?

2. Do you think that persuasive authorities are always secondary authorities?

6.9. SELECTED REFERENCES

1. Cohen, Morris and Olson, Legal Research (5th ed., Kent C., St. Paul, Minn. West
Publishing Co., 1992).
2. Jacobstein, J. Myron, Fundamentals of Legal Research (6th ed., Westbury, New York,
the Foundation Press, Inc. 1994).
3. Kunz, Christina L., The Process of Legal Research (4th ed., New York, Little Brown
and Company, 1996)
4. Statsky, William P., Legal Research and Writing (4th ed., New York, West Publishing
Company, 1993)
5. Wren, Stopher G., The Legal Research Manual (2nd ed., 1986)

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