Resh Exam

• Legal research


  A process of finding an answer to a legal question or checking for legal precedent that can be cited in a brief/ trial
• Legal research


  • Determines whether a legal issue is a "case of first impression" that is unregulated or lacks legal precedent
  • Every lawsuit, appeal, criminal case, and legal process requires legal research
• Categories of legal information

  • Primary Law: Binding law that is codified in statutes, regulations, and case law
  • Secondary Sources: Not legally binding, this type of information explains primary law and legal theory; including legal digests, treatises, journals, etc
• Legal research


  • It is not exceptional & should not be distinguished in general terms from research in other fields
  • Researchers in various fields interests is different and they think differently about their diverse disciplines, they are all systematically in search of the revelation of new knowledge
  • The basics of research are the same, but in each of those fields there are different approaches, methods, attitudes, protocols, cultures, and histories that need to be mastered
  • The way all these 'lawyers' must go about their research cannot, except for the basics, be the same
  • Every country in the world faces its own specific challenges & issues that require answers and solutions to ensure sustainability and, ultimately, survival
  • Informal research - you have conducted for yourself affects you and those people close to you, scientific research is concerned with matters that affect many other people, processes, and systems
• Pure (basic) research


  Concerned with the development, examination, verification and refinement of research methods, procedures, techniques, and tools that form the body of research methodology
• Applied research


  To investigate practical issues to find solutions that can be implemented in practice
• Aims of applied research

  • Investigate whether solutions to social problems can be found
  • Describe and assess social needs
  • Assess and evaluate existing policies and practices
  • Recommend and implement change
  • Identify new areas of research
• Exploratory research


  The study of unknown area
• Exploratory research


  • Data replication (reliability) & accuracy (validity) is not scientific criteria, design must be flexible to enable understanding of unknown area of research
  • Qualitative methods (personal & focus group interviews, surveys & case studies)
  • To identify key concepts
  • To identify key stakeholders
  • To prioritise social need
  • To develop hypotheses
  • To confirm assumptions
  • To identify consequences of research problems
• Descriptive research


  To describe the characteristics of phenomena, relations between variables or relationships between phenomena as accurately as possible
• Descriptive research


  • Different ways of describing phenomena and objects (qualitative & quantitative)
  • To describe a situation, problem, or phenomenon systematically; or provide information about certain phenomena, such as the living conditions of a community
  • To compare attitudes towards issues of great significance, such as the e-tolling system, child abuse, etc.
  • Descriptions given in narrative form (by telling a story)
  • Grouped according to classification systems or typologies that can be used to compare different responses
  • Based on statistical data
• Correlative research


  To establish if a relationship, association, or interdependence between two or more aspects of a situation exists
• Correlative research


  • Look at the relationship between certain variables or how one variable (dependent variable) is affected by another variable (independent variable)
  • Many research questions necessitate correlational research
• Explanatory research


  To find explanations for why certain things happen if we want to find solutions to remedy such situations
• Explanatory research


  • Investigate the varying degrees to which these relations exist
  • May attempt to clarify how & why this relationship exists
  • Can coincide with research that aims to predict or evaluate
  • Experimental (quasi-experimental) designs & correlational studies = quantitative methods
  • To clarify how and why there is a relationship between different phenomena; in other words, whether you can find reasons why certain things happen
  • To 'indicate the direction of a cause-and-effect relationship between an independent variable (X) and a dependent variable (Y)'
• Predictive research


  Use appropriate research methods to explore, describe and explain phenomena, enable you to predict outcomes accurately in given conditions
• Predictive research


  • To prevent undesired outcomes
  • To promote desired outcomes
  • To anticipate probable outcomes
  • Challenging when it involves human perceptions, attitudes, and behaviour
• Pragmatic research


  To find solutions to specific problems by using both qualitative & quantitative methods
• Pragmatic research


  • Does not simply employ both qualitative and quantitative methods but selects specific methods in a complementary way to find answers and solutions to problems
  • To promote collaboration among researchers, regardless of philosophical orientation
  • Emphasis on the process of inquiry itself that includes multiple ways of observing
  • What is the inquiry for?
  • Who is it for?
  • How do the researcher's values influence the research?
• Audience of a legal researcher

  • Practising advocate/attorney
  • Legal advisors
  • Legal academic
  • Law teacher
  • Principal
  • Court
  • The profession
  • Funder or client
  • Employer
  • Scholarly peer group
  • Academic community at large
• Regarding determining the true meaning of law, the contents, application and implication, research has always been a requirement. Therefore, law and research go hand in hand.
• Aristotle compared several constitutions from different Greek cities

  4th century BC
• Hellenistic Law was studied by the Romans – whose legal system influenced the development of the law in Europe and SA.
• Twelve Corpus Iuris Civilis – codification of Roman Law

  451 BC
• Universities established in Europe – research studied Justinian Law and included glossae in the margins = invented specific legal research and teaching methodologies

  12th century AD
• Italian legal scholars wrote lectures and commentaries on Roman Law, canon law and new city state legislation. These scholars are known as the 'post-glossators' or 'commentators' – made use of extensive interpretation.
• Emergence of juridical humanists – broader study and incorporation of legal thinking which included literature, arts, languages, philosophy – undeveloped human nature and personality


  15th and 16th century
• Humanists objected the mechanical and literal methods of glossators and commentators – this development was implemented by the Renaissance.
• Scholars who contributed to natural law thinking

  • Hugo de Groot (1583-1645)
  • Thomas Hobbes (1588-1679)
  • John Locke (1632-1704)
  • Jean-Jacques Rousseau (1712-1778)
  • Immanuel Kant (1724-1804)
• Positivism was introduced by Auguste Comte (1798-1857) – operates on the basis that knowledge can only be obtained by sensory observation and abstraction, followed by (neutral) systemisation


  19th century
• The Cape Charter of Justice of 1827 – required judges to be British barristers – only barristers admitted in England or a person who had a degree of Doctor of Law from Oxford, Cambridge or Dublin, could be admitted into the bar. Roman-Dutch law continued to be the backbone of the legal system.
• Attorneys did not need to have academic qualifications. However, after matriculation, attorneys were required to complete practical training as article clerks for five years (or less, depending on qualification). Cape model provided a basic example for SA colonies – led to the SA structure of practitioners of the Union of South Africa after 1910.
• Examinations of LLB degrees were first implemented in Cape Town


  1874
• Degree awarding faculties of law were established at UCT


  1918
• Degree awarding faculties of law were established at Stellenbosch


  1921
• Significant to the history and legal research in SA are the appearance of books and journal articles – the earliest admission was the commission reports concerning the administration of justice in the Cape Colony in 1829 and in 1823.
• Treatises on specific aspects of the law were published (e.g., WW Burton's Observations on the Insolvent Law of the Colony in 1829 and EB Watermeyer's Community of Property and the Law of Inheritance in 1859).
• Legal theories


  • To enable students to have a normative framework to understand & engage with the type of laws the legislature should seek to pass (or judges should develop, or police should enforce)
  • Enable individuals to develop a deep understanding of some of the main issues involved in the relationship between the individual and the state, obligations of individuals & the distribution of benefits and burdens within the state
  • Enable individuals to engage with the recognition of rights, and to develop deeper understanding of these features of the political system
  • Legal Theory or Jurisprudence constitutes the principles & body of rules that are enforceable in a court of law. The subject underpins all specific legal areas
  • Enable you to gain a full picture of how we have reached the collection of legislation and case law that we have in our modern landscape
• Natural law


  • A body of law or a specific principle held to be derived from nature and binding upon human society in the absence of or in addition to positive law
  • A theory in ethics & philosophy that says that human beings possess intrinsic values that govern our reasoning and behaviour, which the government is required to conform to
  • Maintains that these rules of right & wrong are inherent in people and not created by society or court judges
  • Universal moral standards that are inherent in humankind throughout time, and these standards should form the basis of a just society
  • Stems from the times of Plato and Aristotle
  • Constant throughout time and across the globe because it is based on human nature, not on culture or customs
• Legal positivism


  • A notion in which the law is created and implemented by an authoritative source, such as the state
  • These laws that have been established by man (regulations, written rules, codes, & statutes) & enforced by legislature
  • The "separation theory" is upheld -the idea that there is no connection between law and morality
  • Determining whether a norm can be recognised as law, legal positivists consider how the norm was implemented and enforced and not if it has complied with moral standards