Legal Research – the inquiry and investigation made by law students, legislators, judges, lawyers, and legal writers in the discharge of their function. Its original meaning is the continuous repetition of search. To date, it still retains much of that meaning.
Legal research calls for the diligent, intelligent, continued search for something as proof to a legal stand. It involves: (1) choice of hypothesis, (2) ascertainment of facts, (3) their classification, (4) elimination of irrelevances, (5) the use of both inductive or deductive logic, and (6) assertion of a conclusion.
LEGAL RESEARCH TOOLS
Before embarking in the study of legal research, we must first study the tools we need in order to be fully equipped in its study. The tools are simply books—Law Books. Law books are the repository of the law.
Law books may be classified into what it deals principally:
1) Those that deals with STATUTORY LAWS
2) Those that deals with CASE LAWS
3) and those that deals with both
…and according to class:
1) PRIMARY AUTHORITY
2) SECONDARY AUTHORITY
3) SEARCH BOOKS OR LAW FINDERS
I. Statutory Law
Statutory law refers to those rules enunciated by the competent authorities for the governance of the community. It does not only pertains to the enactment of the legislative department of the government (ex. RA passed by Congress and ordinances passed by the Sanggunians) but also those rules and regulation which have the force and effect of law (ex. BIR rules and regulations). It includes the constitution of the State, departments and other governmental rules, regulations, orders and decisions, the Rules of Court, treaties to which the state is a signatory and municipal and city ordinances.
- Classes of Statutory Law
1. CONSTITUTION – that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.
i)
ii) Malolos Constitution (
iii) 1935 Constitution
iv) 1943 Constitution
v) 1973 Constitution
vi) 1986 Freedom Constitution or Provisional Constitution
vii) 1987 Constitution
2. STATUTES – written expression of the will of the legislative branch of the government rendered authentic by certain prescribed forms and solemnities. They are enactments of the proper legislative body.
i) General Statute – one which affects all the people or all persons or things of a particular class. It operates in all persons to whom it applies equally to all persons of the same category.
ii) Special Statute – one which relates either to the particular persons or things or to particular persons as to their class which operates on a portion of a class instead of all the class. It is limited in scope and confined to a prescribed field of action or operation.
iii) Local Statute – one which operates over a particular locality instead of the whole territory of the State. It applies to any subdivision of the State.
iv) Public Statute – one which contains the interest of the public at large. It is enough that it concerns the public and not merely a private interest although it is “local and special”
v) Private Statute – one which relates to the concerns and affects particular individuals.
3. CODE – complete system of positive law scientifically arranged and promulgated by legislative authority. Example: Revised Penal Code and Civil Code.
4. RESOLUTIONS – reenactments of the legislature employed either to express sentiment or opinions, carry out internal affairs of the legislative body, or to make temporary laws, or establish procedures for constitutional amendments. As a general rule, resolutions are NOT laws since laws refers to those legislative enactments which operate on persons in society, and must be enforced by the executive department and sustained by the court.
5. EXECUTIVE ORDERS, ADMINISTRATIVE ORDERS AND PROCLAMATIONS
The power of the President of the
6. GOVERNMENT DEPARTMENT RULES AND REGULATIONS
The heads of various departments of the government, bureau heads and heads of governmental agencies are sometimes authorized by law to issue rules and regulations necessary to carry out effect of their powers and functions.
7. RULES OF COURT
These are promulgated by the Supreme Court, governing practice pleadings and procedures before all tribunals. These rules have the force and effect of law if they are not in conflict with positive or substantive laws.
8. TREATIES – agreements or contracts between two or more sovereign nations or states entered into by agents appointed for the purpose and sanctioned by the authorities of the respective parties. In the
9. MUNICIPAL ORDINANCES – enactments of the legislative bodies of towns and cities with their territorial jurisdiction.
II. Case Law
Case law is defined as the great class of official literary manifestation of law made of cases decided by courts and by persons or bodies performing judicial functions. Simply put, it refers to the compilation of published decision of cases.
When the highest court of the land decides a case on its merits, it not only determines the rights of the parties to the case but also lays down legal principles as basis for its decision. These legal principles constitute authentic and authoritative exposition and interpretation of law, and become permanent rules of law applicable in all future cases in the same jurisdiction involving similar facts and analogous principles until it has been overruled by a subsequent decision on the same point. Judicial decisions, therefore, provide the second important set of rules which have the force and effect of law consisting of these legal principles emanating from the decisions of the courts of justice.
- Doctrine of STARE DECISIS
The phrase “STARE DECISIS ET NON QUITA MOVERA” which means to stand by precedents and not to disturb settle points, expresses the policy of the courts and the principles when which it rests the authority of judicial decisions as precedents in subsequent litigations.
The doctrine is frequently termed “the rule of stare decisis” and is in general to the effect, that when a point has been once settled by decision, it forms a precedent which is not afterward to be departed from a lightly overruled or set aside, even though it may seem archaic (antiquated). The rule for its object is the salutary effect of uniformity, certainty and stability in law.
Stated in simple form and considered in relation to its effect of upon private affairs, the doctrine is really nothing more than the application of the doctrine of estoppels to courts decision. It finds it support in the sound principle that when the courts have announced to the guidance and government of individuals and the public certain controlling principles of the law or have given a construction to statutes upon which individuals and the public have relied in the making of contracts, they ought not after the principles have been promulgated and after these constructions have been published, to withdraw or overrule them.
The doctrine of stare decisis is grounded in public policy and as such, is entitled to great weight and must be adhered to, unless the reasons thereof ceased to exist, clearly erroneous, or are manifestly wrong and mischievous, or unless more harm than good will result in doing so. It is vital that there be stability in the courts in adhering to the decisions deliberately made after ample consideration. Parties should not be encouraged to seek reexamination of determining principles and speculate on a fluctuation of law with every change in the expounders of it. The Supreme Court in the case of Secretary of Justice vs Judge Alfredo Catolico (68 SCRA 63) said: “Judges should be reminded of their duty to comply with the law as interpreted by the Supreme Court as the final arbiter of any justiceable controversy, and of the great mischief and, prejudice to the administration of justice and unnecessary inconvenience, delay and expenses to the litigants, that would as needlessly caused, should judges of lower courts dispose of cases in accordance with their personal views contrary to the final authoritative pronouncements of the Courts.”
The doctrine, however, is not absolute but flexible, so that when in the light of changing conditions, a rule has been created to be of benefit and use of society. The courts may lightly depart from it. Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision. However recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience, the principle does not mean blind adherence to precedents. The doctrine or rule laid down no matter how sound it may be, if found to be contrary to law, must be abandoned.
- Case
Ordinarily, a case is a controversy brought before the court for adjudication. As used in legal research, it refers to the published decision of a controversy decide by the appellate court including the reasons for the adjudication and usually has the following parts:
- Docket number and date of the promulgation of the decision
- Title of the case showing the names of the parties
- Syllabi or Headnotes in which the reporter indicated the points decided
It consists of summary of statements of the points of law decided
- Court a quo or the lower court from which the case originated
- Names of the counsels for both parties
- Brief statement of the nature of the case sometimes called as “Statement of Origin”
- Statement of important facts
- Statement of issues involved
- Opinion of the court, wherein abstract or arguments of the parties may be included
KINDS OF OPINION (OF THE SUPREME COURT)
1. Per Curriam – opinion of the court in which all the justices are one of mind and so clear that they do not deem it necessary to elaborate by extended discussion. It is of so much weight and authority as any other opinion.
2. Majority – majority of the opinion of the members of the court confirms totally to the opinion written by a member.
3. Concurring – written separately by a member of the court who concurs with the result reached by the majority but of different reason.
4. Dissenting – written disagreement with the judgment rendered by the court and subscribed to by a majority of the members.
5. Divided – one where the Court en Banc is equally divided in opinion or where the necessary majority cannot be had or achieved.
6. Obiter Dictum – opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of adjudication. It is an opinion expressed by a judge on a point not necessarily arising in a case. The doctrine of stare decisis contemplates only such points as are actually involved and determined in a case and not what the court or judge outside the record or on points not necessarily involved therein. Such opinion, being obiter dicta, do not become precedents.
An opinion which is concurred in by at least majority of the court ordinarily constitutes a precedent. If fewer than a majority concurs, there is no ruling opinion except as to the disposition from the case. The decision of a divided court is not a precedent.
- Decision or determination of the rights of the parties
- Judgment or formal order entered as a result of the decision
Decision of the Court is its judgment, while the opinion represents merely the reason for the judgment. An opinion is a statement by a court or judge of the reasons for the decision. Opinion is used either to mean the reasons set out by the court as basis for decision or the reason and conclusion reached taken together as one mental process. It consists of a statement of facts pertinent to the points of law involved, the application of legal principles, and an explanation of the ultimate action taken by the Court upon the relief prayed for. The opinion of the Court setting forth the reasons of their judgments, are the course, of great importance in the information they impart as to the principles of law which govern the court and should guide litigants. The Court’s reasoning in the body of the decision is an aid to the correct interpretation of the law as announced in the syllabus. While an opinion contains the view of the judge in relation to a given subject, a decision embraces the findings of a court, upon reaching a decree or judgment may be entered.
A decision of the court is the final conclusion reached by the judges or justices as to the application of the law to the facts of the case. While we pray that a decision is the judgment of the court, it is not the formal decree. It represents the result of the case, and maybe regarded perhaps as an order for judgment in that it determines the actual judgment or decree to be thereafter entered.
Judgment is the formal disposition of a case and is usually found in the dispositive portion of the decision. It may be contained in a short paragraph as for instance: “Wherefore, the petition for review is divided. The order of the Secretary of Justice dated
Although a lawyer is fully equipped by study, to start the practice of the legal profession, he soon finds that the knowledge stored in the memory is not sufficient to cope with the ever changing and ever expanding laws and legal principles brought about by the changes in the economic, social and political institutions.
We must not also lose sight of the fact that our legal system is an amalgram of Roman Law and the Anglo-American Legal System. To fully understand some of our laws may require and examination of law books written in the jurisdiction of origin which may run to hundreds of volumes.
It is also an undesirable fact that no person however profound his knowledge of the law maybe can rely solely on his memory or depend on common sense in finding solutions to legal problems. For one must be certain, he invokes a legal proposition, that is an accurate exposition of the law and that it has not been rendered obsolete or in applicable by the enactment of a new law or the enunciation of a new legal principal by a later court decision.
Consequently the successful lawyer must make the most use of law books. There are three classes of law book, namely:
1) PRIMARY AUTHORITY - The official book published by the government
2) SECONDARY AUTHORITY - Those that are written and published by the government.
3) SEARCH BOOKS OR LAW FINDERS
A. Books of Primary Authority
They are the authentic repositories of the law itself, that is, they are the repositories of the statutory law and judicial decisions. These books are referred to as repositories of the law because what is regarded as law for any given jurisdiction must necessarily be found in them. Hence, the publication which may be regarded as Books of Primary Authority are those which primarily contain the reproduction or exact copies of the Constitution, statutes, treaties, ordinances, governmental orders, regulations, rules of court and reports of judicial decisions. Ex. Supreme Court Reports Annotated and the Official Gazette
B. Books of Secondary Authority
They comprises the various books written by text writers or commentators on the subject stating therein their comments, criticism, opinions and interpreted reinstatement of the law as founded on the books of primary authority. They are called books of secondary authority because their principal contents are personal views of their authors who might have construed or misapplied the law. Ex. The Civil Code of the
C. Search Books or Law Finders
Search books do not usually purport to give any information on what the law is except for a few. They do not contain any statement of legal propositions and in the latter case, the statements are in the form of very brief notes.
As a rule, search books simply indicate to the researcher where he can find cases decided or contain to a general subject of law. In short, they are guide in giving the researcher explicit decision as to the road he must travel to search a certain goal or objective and indicating to him the clue which if followed correctly may lead him to the authorities he desires to find. Some of the most useful books belong to this class, such as indexes, citators and citation books, and various sorts of table of cases.
