Legal Traditions and the Relevance Assessment
- Length: 10 pages
- Subject: Business - Law
- Type: Assessment
- Paper: #43950904
Excerpt from Assessment :
The NPC, importantly, controls both legislative and judicial functions -- true to the consolidation of power in communism. When discussing the Chinese judiciary, one must understand there are no juries, only judges; and hearsay is admissible as evidence, unlike the civil tradition. However, in keeping with civil tradition, evidence obtained from documents carries more weight than oral testimony. The judge in a Chinese court is not interested in defending laws, their interest is in defending the interests of the communist state and the socialist system.
Module 2 -- Legal Research
Primary and secondary sources (2.11) and Keywords (2.1.2). Sources used in legal research are primary and secondary: primary research emerges directly from legal opinions, legislations, treaties or case law; secondary sources are commentaries about the decisions from journalists, lawyers, scholarly journals, and textbooks.
Things to look for in conducting research include the right keywords, without which search engines are not pointed in the right direction. Looking through legal materials can help locate those pivotal keywords like "family law" and "divorce." Those are broad keywords, and they work better than narrow keywords that zero in too specifically.
Also regarding keywords and research, by using truncation (placing a symbol at the end of the keyword alerts the search engine that you wish variations of the word presented) one can enhance the harvest of the search. Using Boolean connectors ("and" / "or") and proximity operators (incorporating a slash within the keyword phrase like "company w/4 director" rather than "director of the company" works well in retrieval in many databases). Being willing to try different approaches -- like broader searches -- is a good way to find what one wants to find.
Without discerning the reliability of the source, or the validity and accuracy of the source, the researcher is in the dark. Hence knowing the author (and researching his or her authenticity), knowing the date the material was published, and the point-of-view of the narrative and data is paramount to believing in the veracity of the research. Knowing how to best utilize databases in library Websites is another key to locating valid and valuable research documents. There are familiar databases that virtually all universities and colleges use -- like EBSCOhost, Academic Search Premier, among others -- and then there are regional databases, and databases such as DatAnalysis (providing company information not available on general databases).
Online legal databases are a very good source of information -- the best available when it comes to legal issues. Accessing these databases requires very little skill, just following directions. Once into the database, the person searching for legal documents should understand the difference between browsing, searching with a phrase, or searching with a keyword. The use of legal encyclopedias (Halsbury's Laws of Australia -- found through LexisNexis AU -- and the Laws of Australia -- in Legal Online) are available and using keywords or subject areas (using +) is the operative strategy.
Lexis.com opens the door to the Martindale-Hubbell (R) Law Digest -- and once in the database the particular region to be searched can be accessed. The richest reference material can often be found through scholarly journal articles, and thousands are available through the world wide web. Keywords are vitally important in the search for journals that are pertinent to the issue sought. Often abstracts or summaries of important academic journals are available, and can be perused prior to downloading the entire document, which may turn out to be 50 or more pages.
Information relative to all aspects of law (relative to Australia, New Zealand, and Pacific law) can be retrieved through the Attorney-General's Information Service (AGIS). One can use keywords incorporating Boolean connectors in the AGIS database; the drop-down is self-explanatory. A good tip in one's research is to print out all of the journal, even though two or three pages at the end may be bibliography; from the bibliography one finds available a number of academic sources that may link to or dovetail with the research underway. The HeinOnline database offers a wealth of legal data, articles, and documents; once in the database click on "Law Journal Library" link and pull down the "Field Search" link.
The ability to search within a search exists for individuals using the HeinOnline database; use the links "Search Within These Results" and "Refine Your Search" to proceed. Another worthy database is Lexis.com; this offers legal materials from Australia, Canada, the UK and the U.S. Once into Lexis.com the link to use is "Law Reviews & Journals" -- this is found under the "Secondary Legal" heading. Again, Boolean connectors, truncation and proximity operators will work in Lexis.com.
What if the search turns up the abstract or an introduction but not the full text? There is generally a button indicating that the researcher wishes to download the "full text" -- but if that doesn't offer full text, searching through another database is required. Look not for the title of the article but first locate the journal and then search within that journal.
Locating academic materials relating to Commonwealth legislation -- look in www.comlaw.gov.au and select "Compilations" under the Acts heading ("Acts" refers to legislation). When searching for legislation specific to Queensland it is accessed through www.legislation.qld.gov.au/OQPChome.htm.
What about foreign law? The Lexis.com site (at the lower right hand portion of the home page) offers a link called "Foreign Laws & Legal Sources" -- and all or most of the countries that provide legal materials can be accessed there. Once into that country's journal area, the keyword approach is vital; when a long list, seemingly endless list pops up, narrow down the keyword to a more specific phrase or word.
For Chinese law cases, the database to use is iSinoLaw; once in the database click on the primary resources tab. There the resources include: Constitutional & National Laws; National People's Congress; Court Judgments; Civil & Commercial Cases; Judicial Interpretations. These are primary sources, very important for scholarly papers. The secondary sources tab brings the researcher to the following: Legal News; the Introduction to the China Law System; and Contract precedents.
The "specialized sections tab" on the iSinoLaw database offers access to: Company Law; Contract Law; and Family Law. Those are headings that when accessed opens up the door to a great volume of materials that are pertinent to the headings. If there seems to be a problem in accessing exactly the documents needed, use "within these results" to search only within that particular section.
Internet Law. Much of the information on the Internet -- in fact the great majority of Web sites and information -- is non-scholarly and suspect when it comes to needing valid data or reference work. But once in a bona fide database like www.Weblaw.edu.au, the materials available are assured to be valid and scholarly (with rare exceptions). When the URL ends with .gov (that is a government site) the information should be totally dependable as far as reliability and authenticity.
However, one should be cautious when the URL ends with .edu or .ac. The fact is that .edu and .ac are educational sites; however, because some of the information may be from a university class that has done its own research and under the professor's guidance, it does not guarantee that the research material is empirically proven. Nor does it mean that it can be quoted as a valid scholarly source. It could be a person site of an instructional aide, for example, and hence, not an academic source that can be referenced with full confidence.
Professors won't necessarily accept .edu research as valid if they require "scholarly, peer-reviewed research" only. Meanwhile, a URL ending with .org just means it is an organization, and offers nothing in the sense of scholarship or verifiable opinion. A URL ending with .org could be a neo-Nazi Website, or a pornography site, or just a car club for Corvettes.
When a URL ends with .net the quality and validity of the information varies wildly, and like .org it offers no assurance of being a site that a university student can use while engaged in deep research. The URL that ends in .com or .co means that the site is probably commercial in nature and there can be no assurance that its substance will provide worthy research information.
The .au (Australia), .cn (China), .de (Germany) and .uk (United Kingdom) are simply indicators of where the Website is located on the world map.
Other Websites of value in legal research. The www.worldlii.org Website offers a number of valuable tools relating to many countries. Once in the site, select "All Databases" in the left-hand menu and additional links for each country are conveniently available. The Boolean connectors are useful in worldlii.org, but proximity operators are more effective than Boolean connectors; between the two keywords that are being used in worldlii.org the researcher should type in "near" -- this will help locate the words or phrases within 50 words of each other.
World Law Sites / Portals.…