Law as a Determinant of Decisions about Public Issues

Students, both lawyers and non-lawyers doing research involving public issues are likely to address what the law says about the specific public issues they are investigating in their research projects. They will have to read and understand legal documents, such as legislation or decision of a court on these issues. But reading and interpreting legal documents will not be easy for the non-lawyer student who lacks the skills of a trained lawyer. Words and expressions in legal texts and documents, including court decisions, do not often carry the same ordinary meaning and can be confusing or be misunderstood or misinterpreted. In this chapter we will do three things. First, we will explain how lawyers conduct research and the skills set that a non-lawyer student needs to acquire in order to conduct legal research on his or her particular public issue. Second, we will examine how a non-lawyer research student, after having understood how lawyers conduct research and acquired some basic legal research skills, should approach legal research. In the third place, we will learn about the steps that a non-lawyer student should follow in conducting legal research. In addition to these, we will reflect over some questions and some cases studies illustrating the ideas presented in this chapter.

1. Finding the Law and Understanding Legal Research

  •  Generally speaking, legal research is the search for the law or authorities – both legislative and case law – to be applied to a given set of facts and issues of both a private and public nature. For our purpose in this chapter, we can say that legal research is the search for legislation and court decisions to be applied to a given set of public issues.

A. Problems with Legal Research 

  • Law is technical although it is drafted in familiar words. This poses problems for the non-lawyer who wishes to undertake legal research to find out what the law says about a particular public issue or decision relevant to his or her research project.
  • Words, expressions, and phrases used in legal texts and by lawyers may be familiar to you but they carry different meaning in law. The word “discretion” in a will, for example, may be understood by the trustee, that is, the person who fulfils the wishes of the deceased, as giving him or her the ability to use his or her judgment in fulfilling the deceased’s wishes. But in law, the word “discretion” triggers an objective test if the discretion exercised by the trustee is challenged in court. The question becomes in law what a reasonable person would do in the circumstances.
  • As a non-lawyer conducting research that involves some aspects of law, you will need to acquire special legal research skills. Lawyers have specialised skills by virtue of their training at university and in legal practice and your starting point into legal research is to grasp how they do legal research.

B. Understanding how Lawyers conduct Legal Research

  • Lawyers are in the business of advising and representing people, or clients as often referred in legal jargon, on a variety of everyday problems ranging from disputes about breaches of contract, criminal law, property rights, or breaches of regulations protecting the environment, etc.
  • Understanding how they conduct research for finding the authorities relevant to their client’s problems may help you learn and acquire requisite research skills for your research project.
  • A lawyer’s research begins when a problem is brought to him or her by a client. The client may be an individual, a group, a parent, a company, or an organisation. An environmental advocacy group, for example, may approach a lawyer to help them stop a new tailings deposit or mine dump from being established within close proximity to the community’s water sources. Or, the client could be two parents of a teenager who breaks into a high fashion shoe shop; the parents want to know if there is latitude in how the court might sentence the teenager if found guilty.
  • The lawyer will listen to his or her client’s story and probe for further details. These details will allow the lawyer to determine which are the relevant facts or as the lawyers say, the material facts. Accurately determining the relevant facts allows the lawyer to determine which direction the research will take and what steps to follow.
  • In addition, getting detailed information and determining the relevant facts allows the lawyer to grasp the gist of the problem and identifies the relevant legal issues. From the example of the case of the environmental advocacy group, the pertinent legal issues might be: (1) whether the environmental advocacy group (the plaintiff or complainant) has a cause of action against the defendant or defendants (may be the regulatory agency joined with the company); (2) whether the environmental advocacy group has standing before the court, that is the right to be heard by the court; (3) what standard of review should the court use to determine whether the minister’s action undermine the statutory scheme of protecting the environment; (4) whether the minister’s actions comply with the CEPA; and (5) what remedies, if any, should the court grant the environmental advocacy group?
  • Once the lawyer has determined the legal issues, his or her next task is to determine the relevant legal rules that will resolve the legal issues and where to find them. The legal rules applicable to the legal issues are to be found in existing legislation that govern the subject matter and decided cases.
  • In some law schools, law students are taught that a lawyer is not one who knows the law but one who knows where to find the law. Indeed, the lawyer is taught the skills for finding the law. These skills are inculcated in the lawyer while at law school and through apprenticeship in law firms or with judges of the various courts.

Question:

What research skills can I learn from lawyers?

Answer:

Set yourself a reasonable goal to learn to think like a lawyer. That means being able to spot legal issues, determining legal rules, examining legal analysis or application of the law to the facts; and identifying the conclusion of the court.  As you progress with reading legislation and case law, you should able to sift and determine relevant material facts, ability to identify decisions of the court that are relevant to your public issue(s) and be able to find the law.


 

2. Getting started on your Legal Research

A. Set Goals to Acquire the skills of a Lawyer

  • Set yourself some modest goals to acquire the skills of a lawyer.
  • From the list we summarised above, as non-lawyer you might really want to acquire the ability to:
    • Spot legal issues relevant to your research;
    • Determine the legal rules relevant to your public issue;
    • Examine legal analyses and apply the law to the facts of your research.
    • Identify decisions and conclusions of court that speak to your public issue or issues.

B. Turn your Research Problem into a Legal Research Problem

  • You have already identified and defined your research problem and the pubic issue or issues involved.
  • Now, turn your research problem into a legal research problem.
  • To do this, you may need to review everything you gathered from the research so far. Go back to Chapter 2 on getting started and make an appraisal of the tips in there.
  • Identify the relevant legal issues. Consult people who are knowledgeable about the law. Read materials about law before reading legal texts.

C. Learn about Legal Systems and Legal Rules

  • The law operates in a legal system and you need to understand the function of a legal system.
  • An entry point to understanding the functions of a legal system is to grasp the idea of “the rule of law” and its central tenets or fundamental principles.
  • We shall discuss these in more detail in Section 3, Understanding Key Concepts in Legal Research but suffice to point here that the fundamental principle of the rule of law is that no one in society, not even the most the most powerful, is above
    • Legal system
    • Jurisdiction and inherent jurisdiction
    • Legislation

D. Learn about the Judicial System (in Canada)

  • Read about the judicial system and the structure of courts in Canada
  • Hierarchy and system of courts in Canada

court_system

This figure and the discussion of the court system in Canada that follows are adapted from Government of Canada, Department of Justice, “Canada’s Court System”, available at:  http://www.justice.gc.ca/eng/csj-sjc/ccs-ajc/page3.html. Accessed on 14 August 2015.

I. The Supreme Court of Canada
  • The Supreme Court of Canada is the final from all other courts in Canada
  • The Supreme Court has power to entertain matters in all areas of law, including constitutional law, administrative law, criminal law, and civil law.
  • All levels of appeals in the other appellate courts must be exhausted before an appeal can lie or be filed in the Supreme Court.
  • The Court must grant leave or in ordinary language, must give permission before it can hear the case.
II. Federal Courts
  • The Federal Court and the Federal Court of Appeal are superior courts with civil jurisdiction. These courts were created by an Act of Parliament and their powers are specified in federal statutes.
  • The Federal Court is the trial level court. Appeals from it are heard by the Federal Appeal Court. Both the Federal Court and the Federal Appeals Court can hear inter-provincial and federal-provincial disputes, intellectual property, citizenship appeals, cases under the Competition Act, and cases involving Crown corporations or departments of the Government of Canada.
  • Both courts have power to review the decisions, orders, and administrative actions of federal bodies, commissions, and tribunals. In addition, any of these bodies may raise any questions of law, jurisdiction or practice to either the Federal Court or the Federal Court of Appeal at any stage of a proceeding.
  • In certain matters, e.g., maritime law, the Federal Court and the Federal Court of Appeal share jurisdiction with the superior courts.
III. Courts of Appeal
  • Each province and territory has a court of appeal or appellate division that hears appeals from the decisions of the superior courts and provincial and territorial courts.
IV. Provincial and Territorial Superior Courts
  • Each province and territory has superior courts. They are known by various names, including Superior Court of Justice, Supreme Court (different from Supreme Court of Canada), and court of Queen’s Bench.
  • Provincial and Territory superior courts have “inherent jurisdiction”, or “inherent powers”,  that is to say, they can hear cases in any area of the law except those that are specifically limited by another level of court.
  • They have power to try most serious criminal and civil cases, including divorce cases and cases that involve large amounts of money – the minimum amount or threshold is set by the province or territory in question.
V. Provincial and Territorial Courts
  • Each province and territory, except Nunavut, has a provincial and territorial court.
  • The provincial and territorial courts hear cases involving either federal law or provincial or territorial laws.
  • They deal mostly with common criminal offences, family law matter, young persons in conflict with the law (usually those between the ages of 12 – 17 years), traffic violations, provincial and territorial regulatory offences, and claims involving money, up to a certain amount.
VI. Specialised Federal Courts
  • The Federal government created specialised courts, e.g., the Tax Court of Canada and other Courts that serve the military justice system.
VII. Administrative Tribunals and Alternative Dispute Resolution Systems
  • Within Canada’s justice system are processes that are akin to the courts but are strictly speaking not part of the court system.
  • Administrative tribunals are one example. They deal with disputes arising from administrative rules and regulations, e.g., disputes relating to employment insurance, refugee or human rights claims, and disability benefits.
  • The procedure before administrative bodies is less formal than that in courts. The courts provide oversight of the administrative tribunals to ensure that they are operating within the law and with fair and just procedures.
  • Alternative Dispute Resolution systems (ADRS) are another example of processes that dispense justice but are not courts. ADRS allows parties to resolve disputes through informal, less expensive, and time saving procedures or mechanisms.
  • ADRS use mediation and arbitration as basic tools for resolving a dispute. In mediation, an independent third party or person is brought in to help parties reach agreement and while in arbitration both sides to the dispute agree to refer the dispute to a third party of judgment.
  • The courts and ADR complement each other. The courts sometimes use ADR to settle disputes and some provinces require that mediation be made part of the litigation process.

 

3. Understanding Some Key Concepts in Legal Research

Each country has its own legal system that is a system of interpreting and enforcing the laws. This system comprises actors, institutions, written and unwritten legal rules and principles framed in various concepts, words, and phrases. You will need to understand some of the most commonly used of these for purpose of your legal research on the public issue of interest to your research project.

A. Legal Framework

  • The legal principles, rules, and expectations of the law that affect particular activities, the institutions and legal actors make up the legal framework of a given country.
  • The institutions include courts; legal actors include lawyers and juries.
  • Broadly speaking, we might define legal framework as everything written and unwritten that has the import of law in governing the fate of public issues.
  • There is a legal framework to virtually every activity undertaken by corporations, governments, groups, organizations, and individuals. Every government department, for example, is created by a piece of legislation which defines the chain of command, the delegation of constitutional authority, and the purpose and mandate of the department.

B. Rule of Law

  • First propounded by Greek philosopher, Aristotle, the rule of law embodies a set of principles and standards for the governance of society.
  • The fundamental principle of the rule of law is that the law applies equally to everyone and no one, no matter how powerful, is above the authority of law.
  • The rules imposed on society should be consistent in their meaning. The precise meaning of words and rules should be universally applied by the courts so that the same rule will have the same effect no matter in which court the case is heard.
  • The rules should be widely communicated throughout society. Citizens need to have a reasonable opportunity to know what the rule governing them is.
  • Rules should be written in clear and understandable language and the meaning of the language used must be predictable and obvious to anyone trained inn law.
  • It must not be impossible for anyone to comply with the rules. Some rules will impose certain limitations on individual freedoms but those limits are set, at least in principle, to promote the common good of society.
  • Every organ of governance, the judiciary, the executive, and parliament are bound to uphold the principles of the rule of law.
  • The judicial system is particularly critical to ensuring that the rule of law flourishes. It responsible for interpreting and clarifying the laws so that the law can be fair, predictable, and rational.
  • The courts therefore must be impartial and the judges seen to be independent and not subjected to political pressure or manipulation.
  • Judges are bound in their decision-making by the law and the evidence that is produced in court. The judges must follow the law governing a particular issue before the court and binding decisions of higher courts. From the Canadian court system we discussed in section D above, the judges of the Ontario Provincial Court, for example, must follow the binding decisions of the Ontario Court of Appeal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada.
  • The binding decisions of higher courts are legal rules called precedents. They originate from the Latin maxim: stare decisis et non movere, which literally means “to stand by decisions and not to disturb settled matters”.
  • Judge, when deciding to apply binding precedent, compare and contrast the facts of the earlier case in which the precedent was set and the facts of the present case before the court.

C. Jurisdiction and Inherent Jurisdiction

  • Jurisdiction in law means a set of different things. In the context of courts, however, it means the powers of a court to adjudicate cases and issue orders.
  • A court’s power to adjudicate and issue orders is determined by the Constitution or specific legislation of the country in which it is based. In Canada, for example, the Superior Courts were created by the 1867 Constitution Act, which define their powers.
  • The jurisdiction or powers of a court may be defined in terms of subject matter or subject matter jurisdiction, that is to say, the authority of the court to decide the issues in a dispute, e.g., contract or civil rights; by territory or territorial jurisdiction, which determines the scope of the court’s powers visa provincial, territorial, and federal.
  • The subject matter jurisdiction of a court may be inherent, that is to say, general powers to hear all disputes save those that limited to another levels of court. In Canada, under the 1867 Constitution Act referred to above, Superior Courts have inherent jurisdiction. This means that they can adjudicate cases in any area except where a particular matter is vested in another level of court.
  • Even in cases where another court has jurisdiction to hear an issue, a plaintiff or complainant can often bring a complaint in a Superior Court.
  • The Supreme Court of Canada, by contrast, has jurisdiction over all areas of law. Under the 1982 Constitution Act, it has power to review all legislation for constitutional conformity. It is also the final court of appeal from all the courts in Canada.

D. Legislation

  • Legislation, broadly, refers to statutes, acts, bills, conventions, treaties, codes, and rules passed by legislatures, including amendments and modifications to a given legislation.
  • Conventions and treaties are particular kinds of legal instruments. A detailed examination of these is provided in Chapter 13 which deals with global determinants.

E. Common Law versus Civil Law

  • Common law, also known as case law, refers to law not written down as legislation. It is law made by judges of higher courts who enunciate principles of law in earlier cases where no statute addressed the problem, which becomes a rule that guides judges in making decisions in later cases with similar facts and legal issues. The common law evolved from English legal tradition in England and spread to former British colonies.
  • The legal system based on the common law tradition is often referred to as a common law legal system. It is a system of interpreting and enforcing the law based on precedent. And while in a common law system the law emerges from both legislation and decisions made by courts in their application legislation, codes, and rules, it is the pre-eminence of following precedents, even in application statutory law, rules, and codes that gives the system its identity. Judges in common law legal systems have discretion and therefore have more decision-making power.
  • Civil law, by contrast, is law based on a comprehensive statement of rules, or code. Civil law could also mean private law in contrast to public law. In the context of a legal system, civil law legal system is a system of interpreting and applying the law according a codified set of rules.
  • In civil law legal systems, unlike in the common law systems, judges apply the law and are not bound by precedent, namely are not bound by decisions of higher courts made in the past.
  • Canadian legal system is based on a combination of common law and civil law, with all provinces, save Quebec, following the common law tradition. Quebec follows the civil law tradition.

F. Code versus Code of Conduct

  • The word “code” means different things in different contexts. In a technical sense, as in telecommunications and computer programming, it means a system of words, letters, numbers or any other symbol used to mark, represent, or identity something, in order to conceal its true meaning or identity for reasons of brevity or secrecy.
  • In law, however, the word “code” could mean a compendium of laws, or rules, or regulations. Or it could mean written authoritative, general, and systematic legal rules and principles applicable to one or broad areas of life in a given legal system. Perhaps the best known code of laws is that of King Hammurabi of Mesopotamia.
  • According to Douglas Harper’s online Etymology Dictionary, the word “code” in thirteen century England meant ‘a systematic compilation of laws” and in old French, it meant ‘system of laws’ or ‘law-book’.
  • In civil law systems or traditions, and as noted above, the legal rules and principles that judges apply in adjudicating cases are contained in the civil code. A code may contain substantive or procedural law.
  • The word “code” is distinguishable from the adjectival phrase “code of conduct”, however. A code of conduct generally comprises a set of rules of behaviour for members of a group or organisation. A code of conduct is meant to clarify an organisation’s vision, mission, values, and principles and imposes some aspirational standards on how individual members of the group or organisation conduct themselves in every day decision-making processes.
  • A code of conduct, unlike a code in the legal sense, is a set of soft non-binding agreements or rules which members agree to abide by and may not be enforceable in courts of law. A code, by contrast, is hard law which is enforceable both through the courts and other mechanisms of law enforcement.

G. Codify

  • Codify refers to the process of formalizing laws (case law) into a systematic collection of written rules.

H. Case

  • A “case” in law and legal research is not the same thing as a “case” in social sciences research.
  • A case in law is a disagreement between “parties” that is intended to be resolved by a court or tribunal. Or, a case is a dispute between or among two or more parties. The parties can be individuals, groups of people, artificial legal persons such as a business firm or company, and the State or federal State or province. The parties to a case may represented by the expression A v B or A & 5others v B; followed by the case file number and year it was filed in the court, where A represents the plaintiff and B the defendant.
  • In criminal matters, however, one of the parties in a case is a proxy for the general good of the society, who, in many countries, is “the Crown” or “the State”. The parties in criminal law cases would be presented as The Crown v B, where the Crown is the plaintiff and the person accused, B, is the defendant. Sometimes in some countries the Crown or State is represented by the letter “R”, for republic.  Or sometimes it is the Attorney General. The case Canada v Ward may also be presented as R v Ward or Attorney General v Ward or Canada (Attorney General) v Ward.
  • The resolution of the dispute or disagreement results in a decision or judgment of the court. In common law legal systems, decided cases create case law.
  • There is another genre of case, ‘reference cases’ that differ from the normal civil and criminal cases. In a reference case, a government, federal, or state, or provincial, submits a question or set of questions to the court seeking an advisory opinion on a major or major legal issue of public interest.
  • In Canada, the federal government submits questions to the Supreme Court of Canada while provincial governments are able to submit questions to the Provincial Superior Court or Court of Appeal. In 1998, for example, the federal government of Canada asked the Supreme Court to advise whether it was legal, under Canadian or international law, for Quebec to unilaterally secede from Canada.
  • Reference decisions do affect the legal landscape and you might want to find out if there are any references cases in your particular area of research.

I. Case Law

  • Case law is law made up of the decisions of the judges in court cases.
  • In Canada, for example, the body of case law comprises the decisions of judges following the doctrine of precedent, which as we have seen above, requires judges of lower courts to follow the previous rulings of judges of higher courts in their provinces, territories, and the Supreme Court of Canada.
  • The decisions of courts of the same level may also assist judges in reaching a decision and are party of the body of case law.
  • In case law, some decisions are referred to as leading cases or landmark cases or leading decisions. A court decision is said to be a leading case or a landmark case or a leading decision if that decision, for the first time, definitively settles a legal question or issue that remained unaddressed by enunciating an important legal principle or rule.
  • In Canada, for example, the decisions of the Supreme Court set some of the leading decisions of different areas of the law. You may also want to follow up how the particular leading case, especially one that was decided long time ago, has been mention, followed, overruled, distinguished, or discussed by a later case of later cases.

J. Opinion

  • Opinion, in Canada for example, refers to the explanation given by a court for its decision.
  • In the United States, however, it includes the whole decision of the court not just the court’s explanation of its decisions.

K. Precedent

  • In common law legal systems the word “precedent” connotes a decision of courts that sets a new legal standard or that has settled the law on a particular legal question. It is a rule that other courts must apply when deciding subsequent cases with analogous facts.
  • The word “precedent” is often used in the adjectival phrase, the ‘doctrine of precedent’ or the ‘law of precedent’. The law or doctrine of precedent stipulates that cases must be decided the say way when their material facts are the same.
  • The doctrine of precedent is sometimes referred to in its Latin phraseology, the doctrine of stare decisis, which as we have seen above, is also an abbreviation of the longer Latin expression, ‘stare decisis et non quieta moveres’, which translates as, “to stand by decisions and not to disturb settled matters.” precedent A precedent is law.

L. Facts versus Law

  • The details of the situations or problems brought to court are called “the facts”. Facts also could be said to be the set of events that constitute the problem or dispute brought to court.
  • “Law”, by contrast, refers to the rules and principles that are applied, the permitted methods for presenting facts, the decision-making process and the reasoning applied in decisions.

M. Appeals

  • The word ‘appeal’ as used in law, and case law in particular, means applying to a higher court to reverse or set aside the decision of a lower court for reasons of law. It could also mean a challenge to a previous legal determination of an issue by a lower court in a higher court. For example, a decision of the Ontario Provisional Court might be challenged in the Ontario Superior Court on the ground that the court misdirected itself on points of law.
  • Thus, except for the Supreme Court of Canada, a decision made by one court can be re-examined by a higher court that has power to confirm or overturn all or part of it. Appeals are based on question of law and not disagreements about questions of fact.

N. Definitive Law

  • Definitive law is the authoritative or final law on a particular legal issue or subject matter. An issue may covered by legislation, regulations, case law or only legislation. If there is no case law, the final law will be legislation, i.e., the legislative text is definitive.
  • The definitive law on a public issue relevant to your research may vary over time and with specific issues or facts before the court.

O. Implementation and Enforcement

  • The term implementation in relation to law could mean a set of events or actions taken to realize the statutory scheme or purpose of a legislation or judgment of court.
  • Enforcement by contrast, is the executions of the orders or instructions of the law. Built into some laws are provisions for their enforcement.
  • Not all laws contain provisions for implementation or enforcement. In such cases, resource will have to be had to government policies and regulations or custom for implementing or enforcing the law.

4. Steps in Legal Research

We suggest here ten steps to guide you in your search for the law that best applies to the public issue of concern in your research project.

A. Decide

  • Decide what aspects of your research problem require law to explain or analyse, or critique the public issue involved in your research project.
  • Is it legislation and regulations concerning your public issue?
  • Is it what the courts have said or not said about the public issue you are investigating?

B. Consult

  • Consult someone with legal training before starting your research. This means you have to identify an expert, e.g., a professor of law or a lawyer or in certain contexts, a law student in their second or third year of law school whom you can consult throughout the course of your research.
  • Consulting someone with legal training before starting your research will guarantee that the correct legal issues are identified.
  • Consult before and after your research. Consulting your expert after your research is written is particularly important because it ensures that your conclusions, from a legal perspective, are sound.
  • A Law Librarian will be able to help you with the actual research.

C. Gathering Background information

  • Gathering background information is critical to your legal research on the public issue of interest to your research project. A few basics are in order:

i. Use persuasive materials or secondary sources

  • Consult basic textbooks on law and legal encyclopaedia (see Chapter 3) to see how they discuss the public issue of interest to your research project.
  • Encyclopaedia in particular have several advantages:
  • Topics are usually explained in clear language and are fairly neutral. This will save you from being drawn into unnecessary debate early on;
  • They provide references to legislation and case law. This allows you to locate relevant legislation or case law;
  • They may provide information on legal history and policy considerations that the legislator took into consideration before enacting the law;
  • Some major Canadian legal encyclopaedia: the Canadian Encyclopaedic Digest; Canadian Abridgement; and Halsbury’s Laws of Canada.

ii. Read other works

  • Read what others have concluded about the law as it applies to your public issue. Don’t worry about understanding everything you read; just grasp an overview.
  • Have a legal dictionary at hand to look up the meaning of words and phrases
  • Search for basic information and don’t worry about the analytical rigour of the various authors.
  • Select only relevant texts that deal with the law in the area of interest to your project.

D. Consult Legal Blogs

  • Blogs are not authoritative even if written by lawyers but they cover almost all legal areas and there are many out there that might provide you some hints about your public issues of interest to your research.
  • Use blogs to get an overview of the legal topic relevant to your public issue and to find relevant legislation, regulations, and case law. Remember that not all blogs, however, provide good overviews.
  • To get started, identify blogs that are relevant to your research area. You can do this by blog searching tools such as Lawblogs.ca, which provides a listing of Canadian blogs on many legal topics and links to various other blogs.
  • If your research is about a public issue in the United States, use the American Bar Association (ABA) or state bar associations such as the New York Bar Association. The ABA has an annual listing of the top 100 blogs. If you are unable to find a blog directly on the topic of your research on the ABA or state bar associations, there thousands of American legal blogs you can search from.
  • Once you have found the blogs relevant to your research area, sift through the postings and articles to find what is pertinent for your research project.
  • If you cannot find the answer to a particular question about law, write or send an e-mail to the moderator of the blog or post a question on the message boards.

E. Consult Legal Periodicals

  • To get an overview of the legal issues, legislation, and determine what the law is in relation to your public issue, legal journals provide you with a huge selection of articles with different perspectives.
  • You get alternative arguments and considerations that are not necessarily part of legal analysis.
  • Journal articles provide information on relevant statutes and cases.
  • Begin your journal search with the various indexes to legal periodicals
  • Indexes to legal periodicals provide names and locations of specific articles on particular topics.
  • Search table of contents of the journal in which you find and article relevant to your topic.
  • Note that not all of the journals relevant to your research will have the word “law” in their titles.
  • Look for journals that have “policy”, “regulation” and “governance” in their titles.
  • Search by topic area, e.g., “environment”

F. Look for Professional Association Publications

  • Publications by professional associations are persuasive sources of information. They, however, will provide you with valuable information on legislation and cases.
  • Professional Association publications also provide information about legislative changes that were contemplated before a particular piece of legislation was enacted and discuss current legal issues and provide a perspective aimed at the practitioners.
  • If your research is in Canada, the Canadian Bar Association (CBA) and provincial Bar Associations are most relevant to your search for the authorities to apply to your research problem.
  • The CBA , for example, ‘produces a number of useful and informative publications, in print or electronic format’ (http://www.cba.org/cba/pubs/Main/). Its flagship publications, The Canadian Bar Review, the Canadian International Lawyer, and the Canadian Competition Law Review, cover a wide range of areas of law, both legislation and case law.
  • The provincial bar associations collect legal information which is specific to the provinces. The Ontario Bar Association (OBA), for example, which is a branch of the CBA, has over thirty sections on diverse legal topics, including environmental law, natural resources and energy law, business law, and human right rights.
  • If you are searching in the United States, the publications of the American Bar Association (ABA) will provide you valuable information.
  • The ABA publishes over 100 specialty journals or periodicals through its sections, divisions, and forums. Under the sections, for example, each unique area of the law or business could have more than one publication.
  • In addition to the ABA, which is the national professional association in the United States, there are also state bar associations, for each of the states in the United States.
  • If your research is not in Canada or the US, there are also bar associations in various countries in the world, each of which produce publications.
  • In addition to publications, professional associations also organise or post notices about conferences. While conference papers are not “published” material, they might contain valuable information relevant to your public issue and generally provide useful overview of debates on legal and policy issues. From the references, you can glean information about legislation and case and discussions about proposals for legislation, policy or regulation.

Question

So, where can I find publications by professional associations?

Answer

Some of the publications by professional associations, such as periodicals can be found in your university’s libraries and online subscriptions, such as HeinOnline, LexisNexis or Westlaw. You can also get information about where to find publications by professional association from their websites, under ‘publications’. Not all professional associations’ publications from your own or nearby jurisdictions are available from libraries. You might have to rely on your lawyer-expert identified in step one to get access since lawyers normally receive publications from their professional associations. In addition, they also receive notification of other publications.



G. Review Primary Sources on Law

  • Remember the discussion on primary materials in chapter 3, especially where to find primary sources or materials on law?
  • Accessing primary sources materials vary from country to country because each has its own distinct legal system.
  • If you are searching for information on Canadian law for your public issue, you can consult Canlii.org. In addition use search tools such as Carwell/Westlaw and LexisNexis/Quick Law.
  • These two are the most powerful research tools and contain access to local and international material. In addition, they contain significant amounts of research material outside the law.
  • Most university libraries have access to these and non-law students have some limited access through their university libraries. Consult with the librarian for instructions and access.

H. Legislation

  • You will need to know where to find legislation and read and understand it if you are to correctly apply it to your public issue.
  • In general, there are two types of legislation: Acts and subsidiary or delegated legislation. Acts are the laws that the Parliament enacts. Subsidiary or delegated legislation are laws made by persons given power to do so by Parliament by means of an Act. The Governor in Council in Canada is the person most given power by federal Acts to make subsidiary legislation. Subsidiary legislation are also generally referred to as regulations.
  • But legislation, invariably referred to as “statutes” or “acts” by lawyers, is often written in very dense and occasionally technical language, albeit the words may be familiar to you. Thus, many provisions of any piece of legislation are vague and confusing. Moreover, legislation may cover more than one issue or situation.
  • Don’t worry, however; we will consider some basic guidelines to reading and understanding legislation and where to find it.

I. Reading and Understanding Legislation

  • The structure of legislation, i.e., the order of arrangement of the provisions, the division of material, and the standard component of an Act of Parliament provides you a starting point into reading and understanding legislation.
  • The standard structure of a piece of legislation in Canada comprise: arrangement of the provisions in logical order; the division of the material in parts, sub-parts (in certain legislations), sections and subsections, and schedules. You get a picture of this by looking at the table of provisions.
  • The division of legislation in parts makes it easier to read and comprehend. A part indicates the cohesive relationship between the provisions within it. If you look at the Patent Act, we referred to above, for example, you will see the structure of this Act arranged in parts. Under the part, “PATENT OFFICE AND OFFICERS”, for example, there are 9 interconnected sections on various aspects associated with the patent office and its officers. In some legislation the parts are numbered in Roman numerals, e.g., the Old Age Security Act, (R.S.C – 1985, c. 0-9).
  • Some of the basic provisions within the structure of legislation that will guide you in reading and understanding it are the title of the legislation, the section on interpretations/definitions, section on competent persons, section on competent bodies or agencies, sections on powers of person mandated to implement or monitor or supervise certain aspects of the legislation; and section on amendment or modifications to the legislation.

Question:

What is the function of ‘title’ in a piece of legislation?

Answer:

The title of a piece of legislation is an essential element of it. There are two aspects to the title of legislation: the long and short titles. The long title tells readers the purpose of the legislation. The short title is used for the purpose of citation. To illustrate, let us use the legislation on environmental protection in Canada, the CEPA. The Long title is “An act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development”. The short title says, “This Act may be cited as the Canadian Environmental Protection Act, 1999.” This is the title you would be using in your search, if your research involved public issues of an environmental nature in Canada.


Question:

What is the difference between the “title” and “preamble” in a piece of legislation?

Answer:

The preamble sets out the purpose and reasons for enacting the legislation while the title only tells you about the purpose of the legislation. The preamble can also tell you the legislature’s intention. The CEPA, for example, has a long preamble that gives some of the policy considerations behind it. Some legislation has a preamble section lying between the long title and the short title. Some legislation does not have a preamble. In some countries, such as New Zealand, preambles are no longer used in legislation.


Question:

Why is an interpretation section needed in a piece of legislation when judges are the one to interpret the law?

Answer:

The interpretation or definition section provides the legal definition of key words and expressions used in the legislation and how they apply. The meaning of words used in the legislation must be understood in the context of the legislation as a whole. In some legislation, such as the CEPA, in addition to the general interpretation section, each part of the legislation has an interpretation provision.

  • In addition to these preliminary aspects of legislation, namely, it is purpose and the meaning of words used, you want to know the substantial issues, especially the competent persons, competent agencies, and the powers of the persons to achieve the scheme of the legislation, and the rights of the public, if any.
  • The sections dealing with the competent agency or agencies will tell you what the responsibilities and powers or mandate of the agency established by the legislation are. Do not read into the mandate more than is literally intended.
  • You will also want to know the powers of competent persons carrying out a particular mandate, e.g., power to monitor the situation or enforce the law. Sometimes the case law will give you an interpretation of what these powers mean.
  • In addition you will want to know what modifications or amendments to previous legislation or law were made in the legislation you are reading. Pay particular attention to anything that has been changed in order to understand the legislature’s intention. This information may be found as marginal notes in the margins of the legislation.

Question:

How do I read and understand legislation?

Answer:

You will need to, in addition to reading the title, preamble, definition, and substantive sections of the legislation, read material other than the legislation itself such as case law and editorial comments. The presence of definition of terms used in a piece of legislation will not resolve ambiguity in the meaning of words and terms used. Moreover, not all terms are defined, and even if defined, words or terms may still remain ambiguous or unclear. Some words, such as “possession” used in the context of criminal law, even if defined, remain unclear. Under section 354 (1) (a) of the Criminal Code in Canada, for example, anyone in possession of any property or thing obtained in Canada by means of an offence punishable by indictment, commits an offence. Even though the Criminal code defines the term “Possession” in section 4(3), you could still look at decided cases such as R v York (2005), 193 C.C.C (3d) 331 (B.C.C.A) for a clearer meaning. When you synthesize what the legislation says the meaning of a term is with what the courts decide you get the legal definition of that term or expression.


 

J. Where to Find legislation

i. Finding particular piece of legislation

  • If you are carrying your research in Canada, a good starting point when looking for legislation is the Canada Gazette, the official newspaper of the Government of Canada. It gives you information about federal legislation enacted and having royal accent and statutory instruments, i.e., regulations. It has its notes for the reader about its content and the authority under which it is published. It is available both as a hard copy and electronic version. Electronic copies are either in PDF or a HyperText Mark-up Language (HTML) version, which can be accessed at: http://www.gazette.gc.ca/gazette/home-accueil-eng.php.
  • There are text and online resources where you can find legislation.
  • You can also find legislation by visiting university and Law School libraries, which often hold legislation compilations of legislation.
  • Annotated editions of federal Statutes in federal States such as Canada and the United States are also available. Federal governments and state or provinces have consolidated statutes available online.
  • If you are researching in Canada, you can find current laws at: http://www.justice.gc.ca/eng/contact/FAQ.html#fsr; Consolidated Acts (alphabetical): http://laws-lois.justice.gc.ca/eng/acts/;

Chronological legislation listing:
http://laws-lois.justice.gc.ca/eng/AnnualStatutes/index.html;

Constitutional Documents:
http://laws-lois.justice.gc.ca/eng/Const/

 

ii. Finding older and rare piece of legislation

  • Finding older legislation may present you with some difficulty because the main sources such as the consolidated edition of statutes, while may contain all of the laws, a revised edition may not or may only have laws enacted since the last date of its publication.

Question:

Where then do I find an obscure law?

Answer:

You might wish to start with your expert and then with text books rather than online sources. There are old statutes on a number of public issues, such as the statute on Champerty, R.S.O. 1897, c.327, which deals with illegal agreements procured by a person with no previous interest in a lawsuit with a view to sharing the disputed property if the suit succeeds. Although passed in 1897, it is still in force in Ontario and part of the Revised Statutes for Ontario 1914, volume 3. You cannot find this statute on CanLii.org or on the Ontario consolidated Laws online: http://www.search.e-laws.gov.on.ca/en/search#LegalAdvice. To find older law, such as this, you will have to consult, in addition to your expert, librarians at law libraries, university libraries, and public libraries.


 

K. Identification of Regulations

  • The starting point to remember is that all levels of government, provincial and federal, in Canada are involved in regulation of a variety of activities and events. You will need to know what are regulations, how they are made, the regulatory bodies and their powers, and reviewability of their decisions.
  • Regulations are one aspect of subsidiary or delegated legislation. Generally, subsidiary or delegated legislation, unlike Acts of Parliament, do not have the words ‘subsidiary’ or ‘delegated legislation’ appear in their titles. Subsidiary legislation has various names, namely ‘regulations’, ‘local by-laws’, by-laws’, and ‘rules’.
  • Regulations are a set of rules or directives that establish the finer details of how an Act’s purpose is to be implemented and enforced.
  • Regulations are made under an Act which gives power to a person to make them. The Act will say that such regulations can be made and for what purpose. The setup of the regulatory body or agency, including public participation in its proceedings, the role of lawyers, nature of decisions and follow up of those decisions will also be specified by the parent Act and the regulation itself.
  • The person making the regulations and the regulatory authority must not exceed the power granted by the Act or parent legislation or abuse those powers by acting arbitrarily.
  • The decisions of the regulatory agency are reviewable by courts of law. In some cases decisions made by the regulatory agency may be appealed to the courts. In Canada and some countries, the decision of regulatory bodies may appealed by the Cabinet Minister in charge of the department.
  • If you are researching in Canada, you can get a consolidated list of federal regulations listed in alphabetical order at: http://laws-lois.justice.gc.ca/eng/regulations. You can also use Canlii.org’s search engines to make full text searches of particular regulations of interest to your public issue. The websites of provincial ministries, departments or agencies may have legislation relevant to your research.

Question:

Where do regulatory bodies derive the power to make regulations?

Answer:

Regulatory bodies get the power to make regulations from legislation enacted by Parliament, sometimes referred to as “the parent Act” or “enabling legislation”, which creates the legal framework on a particular subject matter. In Canada, for example, the Patent Act is the legislation on patents of inventions and creates the Patent Office and its officers. It vests the power to make rules and regulations for implementing the statutory scheme in the Governor-in-Council. The Patent Office is the regulatory body on all matters relating to the patent of inventions and details the process patent application, grant, and appeals and other substantive areas. It implements and enforces the Patent Rules made by Governor-in-Council. The Patent Rules and regulations cover issues of patent application, examination details, interpretation of statutory information, information on the appeal process, and the structure of the appeals tribunal.


L. Case Law

  • You have found the relevant law – legislation or regulations – concerning the public issue you want to address in your research project. You might want to find out how this law has been interpreted by the courts. Your next step is to find the relevant case law.
  • Renown United States Justice of the Supreme Court, Justice Oliver Wendell Holmes once said what in his view the law is, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
  • Case law is law created by the judges called upon to settle disputes on various areas of the law brought before them in court.
  • Case law, for research purposes demonstrates how the law is interpreted and applied. It creates legal rules that clarify unclear meanings or interpretations of legislation or regulation.
  • Case law, in common law legal systems, creates legal rules to fill the void where no legislation exists or where there are gaps in legislation. Subsequent decisions are based on what has been decided in previous cases or precedent.
  • Case law sometimes provides a thorough legal analysis in order to bring clarity to the law. Such a synthesis of the law by a court is considered the gold standard and is an authoritative statement of the law than a legal academic’s legal analysis of the law, which is considered only persuasive.
  • The reporting of cases and decisions of courts follow a standard format but not all cases are reported. The typical case report will contain the problem as set out in the facts as stated or summarised by the judge. Then there follows the decision and the reasoning of the court on either each of the issues agreed or some issues and how the legislation, regulations, and decided cases apply to those issues.

Question:

Where do I find Case Law?

Answer:

 Finding a specific case or specific cases relevant to your public issue, unlike legislation, may be far difficult for you because case law is very specific. Finding a case or cases “on point”, namely, cases which have similar facts and legal issues to your issues is particularly hard since a particular set of cases may only refer to one legal aspect of an issue while another set of cases may examine another aspect of the same legal issue. In spite of these challenges, it worth proceeding with your search for the case law that is relevant to your public issue. A starting point is to consult your expert more often. Secondly, law reports are the primary sources of cases in print. You should consult law libraries and librarians with special expertise in law reporting and various law reports. Some law reports publish cumulative table of cases and subject indexes in separate volumes which cover several years. You can use the index volumes together with secondary sources to locate case law relevant to your public issue.

In Canada, for example, law reports may cover national, regional, and provincial Law jurisdictions. The Dominion law reports (DLR), for example, cover important cases from across Canada while the Ontario reports cover cases from Ontario. There are subject-specific law reports, such as the Canadian Environmental Law Reports (CELR), the Canadian Criminal Cases (CCC), and the Canadian Human Rights Reporter (CHRR). Some of these might be found online. The Supreme Court of Canada’s decisions are published also online and can be found at: http://scc.lexum.org/en/index.html. Prior to 1949, the Supreme Court’s cases could be appealed to the Judicial Committee of the Privy Council, with the last case decided in 1959. You might have to visit websites with United Kingdom decisions to access them, if your public issue requires you to look at past law. You can access cases by all federal and all provincial courts using Canlii.org but documents before the year 2000 are not available.


 

5. Questions to keep in mind

Here is a sample of questions you might want to keep at the back of your mind as you carry out your legal research about the public issues of interest to you.

A. The Legal Framework

  • What is the history of the law within the broader legal framework?
  • What does the law on the specific public issue of concern to your research project encompass and what is not included?
  • Have been recent changes to the law or laws?
  • Have there been many changes or a short period of time?
  • Which interests and issues are addressed?
  • Which legal institutions are involved?
  • What is the connection between the area of law of interest to you and other related areas of law?
  • What is the primary jurisdiction for the legislative framework governing your issue – provincial or federal?

B. Specific Legislation

  • What terminologies are defined and how?
  • What is the scope of the law?
  • Who is mandated to do something and how?
  • What powers are granted, to who, to do what?

C. Regulation

  • What regulatory body other than courts of law is created?
  • What is the scope of its powers, procedures, and resources?
  • How is information on regulation disseminated and to whom?
  • Are there inspectors and what are their powers?
  • What mechanisms are envisioned for record keeping?
  • What mechanisms are there for enforcement?

D. Case Law

  • What legal issues are raised in a particular case relevant to your public issue?
  • What other cases deal with the issue or issues you are investigating?
  • What other decisions or legal authorities are cited?

Case Studies

Privatization in Nigeria

Since the advent of democracy in 1999, the Nigerian government has vigorously pursued a privatization policy. This policy is expected to restructure the public sector and to bring total transformation to the economy. However, I already knew from my experience that in Nigeria that the realization of these goals has been minimal.  I knew that Nigeria still faces severe and worsening economic problems. I wanted to explore why expectations are still remote from realities.

I could have looked at privatization policy in general, but this was much big a question for research.  I could have focused on the history of Nigeria’s economy, but this history was mainly the background to what I really wanted to study.  The more I thought about it, the more it became clear to me that, whatever one thinks of the policy goals themselves, the problems that Nigeria is experiencing are not due to the policy itself.  The problems stemmed from the dysfunctional state of legal and institutional structures in Nigeria. I decided to look at how the divestiture law, corporate governance regime, regulatory quality, competition regime, tax administration, judicial system, and land tenure structure contribute to the inability to realize the goals of the policy.

I started the research by gathering secondary sources such as textbooks, journals, newspaper reports, national and international policy documents to familiarize myself with literature on private sector participation in economic development and legal institutions. The secondary sources were gathered through extensive library and Internet research.

I then proceeded to gather the primary sources of law. The primary sources are mostly legislation relevant to Nigeria’s privatization policy. Laws such as the Privatization and Commercialization Act, Cap P 38, Laws of the Federation of Nigeria, 2004, the 1999 Constitution of the Federal Republic of Nigeria, the Companies and Allied Matters Act, Cap C 20 Laws of the Federation of Nigeria, the Land Use Act Cap L 5 Laws of the Federation of Nigeria, 2004, the Nigerian Communications Act of 2003, the Electric Power Sector Reform Act of 2005, and the Infrastructure Concession and Regulatory Commission Act of 2005 were important to examine.

I sourced the above laws from the index volume of the Laws of the Federation of Nigeria. I resorted to the index volume of the Laws of the Federation for two reasons. First, the volume consolidates all the statutes in Nigeria. Second, it arranges the statutes in an alphabetical order. These factors saved me time in searching for individual legislations.

I adopted the deductive-methodological approach in analyzing the statutes. Specifically, I used the approach in evaluating the legal procedure for divestment of shares in public enterprises, and the institutional arrangements for regulating the operations of private investors. For example, in looking at the Privatization Act, I realized that there is no provision that guarantees transparency in the divestiture process. Modes of transfer of public enterprises neither compel individuals who implement the policy to disclose their interests nor bar them from participating in the bidding process.   In addition, I discerned that under the Companies and Allied Matters Act, the institutional mechanisms for protection of minority shareholders in privatized firms have been inadequate. After this research, I knew why many of the problems with the policy had arisen.

The gathering of the primary sources was followed by a fieldwork. The fieldwork took place in 2010 at the Bureau of Public Enterprises, Abuja, Nigeria. This is the statutory body that serves as the privatization agency in Nigeria. I spent a period of two months in Nigeria. During the fieldwork, I gathered policy documents on privatization from the Bureau. For instance, I collected the National Council on Privatization Handbook, the Privatization Procedure Manual, and the Bureau of Public Enterprises Journals on Privatization. However, the documents containing actual privatization contracts with investors were not made available to me. This was due to the fact that the officials of the Bureau were afraid to release such documents to individuals who are not employees of the agency. I knew that the aversion to release the documents was not unconnected to the controversies that have dogged the policy in Nigeria.

I supplemented the documents by interviewing officials of the agency on a not-for-attribution basis. I believed that this approach would assist in eliciting information on certain aspects of its implementation and in getting answers to sensitive questions. However, the process of interviewing officials of the Bureau was not spared of challenges. Some of the top officials of the Bureau erected strong fire-walls.  However, I was able to secure close collaboration with some officers in the lower cadre of the agency.  For every reluctant official in the junior rung, there seemed to be one willing to talk.  Persistence paid.

I wanted my research to be interdisciplinary. To rely solely on conventional legal analysis would have undermined the important issues in the study. I was impressed by David Hollander’s argument: He said, “fields outside law provide analytical and conceptual techniques which can be used to broaden perspectives…through systematic observation and theoretical reflection…Increased use of interdisciplinary approach…helps to unlock the legal system’s animating principles, provide better understanding of the probable impact of legal rules on behaviour and improve comprehension of law as a field and social practice.” I needed to read in the areas of economic theory, international relations and Nigerian politics to gain insights into the law and its application.

In the end I thought there should be a re-conceptualization of privatization policy, away from the notion of selling off public enterprises towards micro and macro legal reform and institutional transformation. To succeed in its economic policy, I argued, Nigeria needed novel and proactive approach.  I concluded with recommendations: the government should institute a Law and Economic Development Commission and an Institutional Impact and Assessment Commission to administer the responsibility of reform of economic laws and enhancement of institutional performance. I recognize that the political will for change is absent, but I concluded that the current situation was untenable and would force change.

Wiseman Ubochioma

 


Accessing and sharing the benefits of indigenous knowledge in Brazil

Recent scientific advances, most notably in the field of biotechnology, have considerably increased the economic interests linked to the planet’s biological resources, as well as, to indigenous communities’ traditional knowledge about biodiversity.  Such interests affect indigenous peoples in two ways.  Firstly, much of the world’s remaining biodiversity – the ‘source’ of biological resources – is concentrated in areas inhabited by indigenous and local communities.  Secondly, indigenous knowledge, unlike its ‘scientific’ (i.e. Western) counterpart, is not protected by intellectual property rights.

Traditional knowledge’s lack of legal protection has permitted its unauthorized commercial exploitation and/or appropriation under intellectual property rights by researchers and commercial enterprises, predominantly from developed countries, without any compensation to the knowledge holders.  This phenomenon has come to be known as ‘biopiracy.’

National sui generis regimes based on the United Nations’ Convention on Biological Diversity’s access and benefit-sharing principles have emerged as important modes of protection of traditional knowledge outside of the intellectual property system.  A number of countries, including Brazil, have opted for a sui generis regime.

The goal of my research was to investigate Brazil’s challenges in implementing the Convention on Biological Diversity at the national level in light of the country’s enormous diversity of traditional knowledge holders.  Gathering background information began with a search for academic materials.  I first looked at legal periodicals and then periodicals from other relevant disciplines, keeping in mind that my jurisdiction was Brazil and my focus of attention was the implementation of the Convention on Biological diversity in that country. The literature in English proved to be rather limited in this regard. It soon became evident that the investigation would need to focus on books and academic papers written mostly by Brazilian scholars.  As such, knowledge of Portuguese was absolutely essential.

It was not easy at first to tap into the Brazilian pool of knowledge.  Though I am originally from the country, I did not know anymore who were the leading academics in the field.  Moreover, I did not have access to Brazilian periodicals and indexes.  This made the initial process of gathering background information much more challenging.  One day I came across a great book entitled “Genetic Resources, Traditional Knowledge & The Law: Solutions for Access & Benefit Sharing” which contained three chapters on access and benefit-sharing in Brazil, all written by local Brazilian scholars.  Serendipitously, one of the authors was a Professor at a university in my hometown.  I contacted him and arranged a meeting.  It was through this conversation that I became aware of some other local scholars and the needed bibliographic source materials.  These in turn, provided me with an invaluable bibliography for further research.

Shortly after, I also contacted one of the other two authors with whom I would later have a few telephone conversations. I had finally gained access to the local academic conversation!

During the process of gathering background information, I also searched for technical documents and official reports concerning the implementation of the Convention on Biological diversity and/or Brazilian Provisional Act provisions at the national level.  These included a wealth of documents published or made available on the internet by the Secretariat of this Convention at United Nations, several United Nations agencies, the World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, as well as, Brazilian non-governmental organizations such as the Instituto Socioambienal.  The Instituto in particular proved to be an invaluable source of information in Brazil. It is a very well-respected organization and watchdog created by leading academics and activists, Brazilian and foreign, concerned with social and environmental issues.

Taken together, these secondary sources were fundamental in helping understand the contextual background, as well as, map the main issues, difficulties and concerns.  In addition, the importance of having contacted the two Brazilian Professors cannot be stressed enough, not only because they opened the door to the local academic literature but also because of their invaluable guidance.

Once I had a good understanding of the background information and was able to grasp the complexities of the issues at hand, I turned to the primary sources, that is, the various pieces of legislation.  The obvious starting point was the Convention on Biological Diversity itself.  Though I had previously read the text of this Convention, I could now read it much more carefully, focusing on the articles that were most pertinent to the research in addition to the Preamble. I kept in mind all of the relevant background information I had collected.

At the domestic level, the primary resources were the Brazilian Constitution (1988), the Indigenous Statute (1973), the Civil Code (2002), and Provisional Act 2186-16 (2001).  The last law regulates, among other things, the Brazilian access and benefit-sharing regime.

At the international level, I knew that Brazil had signed two important legal instruments that dealt specifically with the rights of indigenous peoples and were, therefore, relevant to my research: the ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples. It was not difficult to access neither the national nor the international legislations. They were all readily available in electronic format and a simple search did the trick.

I knew that legislation should not be interpreted in isolation.  For instance, my research would have been severely handicapped had I simply looked at the text of the Convention and the Brazilian Provisional Act.  The task of interpreting multiple legislations and understanding the effects of international law at the domestic level should not be undertaken by a student without legal training acting alone.  It was essential to seek the guidance of a law professor, lawyer or advanced law student.  This ‘mentor’ not only helped identify pertinent legislation that needed to be looked at, but most importantly, was a guide in understanding how national and international legal instruments interact and affect each other.

In addition to looking at legislation, it was also important for me to look at pertinent regulations.  These were found through the official website of the Brazilian ‘Genetic Heritage Management Council’, the governmental body responsible for the management policies of the country’s genetic resources and established by Article 10 of Provisional Act No. 2186-16/2001.  Again, my legal mentor helped me identify the applicable regulations.

Brazil operates under the civil law system, where the role of the judge is to interpret the written law.  The judge is not bound by precedent.  Still, it was useful to look at court decisions to see examples of various interpretations of the codified law by different courts, even while I was keeping in mind that such decisions are not ‘binding’ on other courts (stare decisis), to use the common law jargon.  There exists in Brazil, so-called “commented codes” (e.g. commented civil code, commented criminal code, etc.) that directed me pertinent statutes, regulations, rulings, etc.  Again, the nom-lawyer would need the help of someone trained in law to find these or equivalent resources. Given the nature of my study, the only case I looked at was a recent Supreme Court decision concerning constitutionally-guaranteed indigenous land rights.  This was a highly controversial case where the Supreme Court is said, by a number of Brazilian legal scholars, to have gone beyond its role of interpreter of the law.

 


Once you have read this chapter, you should be able to:

  1. Understand what legal research involves and the methods used.
  2. Grasp the knowledge and skills needed to do legal research.
  3. Perform the steps required in undertaking legal research on the pubic issue relevant to your research project.
  4. Find and locate the secondary and primary sources for your public issue.
  5. Recognise and understand key legal terms or concepts used in legal research

 

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