Br. Mahyuddin Daud Department of Laws CFS IIUM RESEARCH SKILLS Br. Mahyuddin Daud Department of Laws CFS IIUM
Introduction Research skills plays an important role towards development of legal skills Includes skills to find primary and secondary legal resources Legal profession requires professionals to be familiar with research: Lawyers (prosecutors, defense counsel etc.) - research as part and parcel of the case & argument formulation processes. Judges – to know which laws applicable – settlement of court cases
The Research Process Legal research process is unique. The researcher begins his work by identifying the legal issues which he wishes to study. Having found the legal issues, the researcher selects reading materials and identify the primary & secondary sources to be used to conduct the research. However, there are legal researchers who start the research process by finding, reading & understanding the law first. Identifying the legal issues come after.
At the initial stage, the data or information gathered must be analysed - differentiate the most authoritative from the least authoritative. HOW DO YOU GRADE DATA / AUTHORITIES FROM THE MOST AUTHORITATIVE TO THE LEAST AUTHORITATIVE?
Legal sources such as: Statutes, international treaties Reported & unreported cases Academic textbooks Referred journal, articles, reviews Electronic materials (Internet) eg. Wikipedia, Google, Yahoo
Legal Resources Primary Secondary
Primary legal sources 1.Legislation Examples: Statutes (Acts of Parliament, State Enactments) Federal & State Subsidiary Legislation (Orders, Rules, By-laws, Regulations, Proclamation, Notifications) Primary importance, most authoritative to the court Negative aspects, may be general and needs support from cases (as to interpretation)
Interpretation of statutes? Where to refer to? Hansard Official report of the Parliamentary debates According to the decision of House of Lords in Pepper v. Hart (1992), Hansard or parliamentary papers may be used to interpret meaning of statutory provisions. Case reports Judges explain and discuss meanings of certain terms in depth for the purpose of interpretation
Examples of Primary Legal Resources
2.Case reports / Law reports Malaysian reports: Malayan Law Journal (MLJ), Current Law Journal (CLJ), Industrial Law Report (ILR), Shariah Law Report (ShLR), All Malayan Report (AMR), Jurnal Hukum, etc England: All England Report (All ER), Weekly Law Report (WLR), etc Indian: All Indian Reporter (AIR) Singapore: Singapore Law Reports (SLR)
Most Authoritative Case law? Depends on level of the courts Disputes in national courts – ratio decidendi decided by the apex court is the most authoritative (stare decisis) International courts – ICC – Art 21(2) Rome Statute: The Court may apply its previous decisions ICJ – Art 38 ICJ Statute : ICJ may use previous judicial decisions to help interpret the law. However, the Court is not formally bound by its previous decisions under the doctrine of stare decisis. (Article 59)
Secondary Sources Secondary sources could be anything from text books, bar review, scholarly articles and legal encyclopedias. Secondary sources are important in legal research because they point the researcher to primary sources of the law, namely legislations and cases. Examples: Students textbook Journals / periodicals Official publications (hansards, bills) Others (newspaper, online materials –should be used with caution)
Secondary sources also reveal current development in the respective area of law, hence may have instigated the research in the very first place. Secondary importance compared to statutes, but most of the time be of great assistance to offer explanation on certain subject matter. Work of authors who are of high prominence may be considered as primary importance in court trials. (e.g. judges, professors)
Finding Legal Resources Legal Research Tools: Library-based Internet LexisNexis, CLJ, Westlaw etc Search engines i.e. Yahoo, Google Others Interview-based Survey Questionnaires