IRM1501STUDY NOTES & SUMMARY.

IRM1501STUDY NOTES & SUMMARY. What is research? The Free Dictionary defines research as: the systematic investigation to establish facts or principles or to collect information on a subject. Creswell says research is: a process of steps used to collect and analyze information to increase our understanding of a topic or issue. Research consists of 3 steps: Research process is: Other ideas behind the word “research”: • Creative • systematic • increase stock of knowledge / increase understanding • new information brings about reaching new understanding • process of steps • collect • analyse • studios enquiry • examination • investigation • discovery • interpretation of facts • detailed study Why research is important It helps you to have a detailed analysis of everything that forms the basis of your research. only after conducting proper, indepth analysis – bear fruit + enhance knowledge. Other benefits of research: posing a research question collecting info / data to answer question presenting answer(s) to the question assessing existing knowledge criticising existing knowledge explanding on existing knowledge OR contributing to the develoment of existing knowledge enhances knowledge - keeps you up to date with newest info increases personal knowledge on topic = know more clarifies confusion (when read expert opnions) helps grasp proper understanding on subject learn about methods and issues that need more investigation introduces you to publishing = enhances writing skills enables coloaborative work with others IRM1501 Summary 3 Also: • knowledge shared helps full body of knowledge grow • innovation • application of scientific processes • helps find the truth not yet discovered – and makes available to public • helps researchers become familiar with particular facts and phenomena • can describe specificity of facts / phenomena • capable of diagnosing facts / phenomena + frequency which could occur in future • test accuracy of this likelihood using established variables = hypothesis testing Scientific and non-scientific research Science = (1) facts-based - facts can be: o observable (empirical) o non-observable (non-empirical) e.g. principles / values (2) logical and objective - facts from science = product of rational process (3) informed by desire to provide certainty (4) scientific answers - are always o precise o measureable Scientific vs Non-scientific Scientific Non-Scientific General approach: Empirical Intuitive Observation: Systematic Casual, uncontrolled Reporting: Unbiased, objective Biased, subjective Concepts: Clear definitions Ambiguous Instruments: Accurate, precise Inaccurate, imprecise Measurements: Valid and credible Not valid, not reliable Hypothesis: Testable Untestable Attitude: Critical, skeptical Uncritical, accepting Scientific research defined: A systematic investigation of scientific theories and certain propositions. Thus, a particular process or processes must be followed. Scientific research: Process • rational and methodical (techniques) • logical and rational o investigation / examination of facts (to study a particular phenomenon) o = to acquire new knowledge or § improve / develop existing knowledge Findings must be • Reproducible • Consistent Justifies: resources + time + effort IRM1501 Summary 4 Basic research methods In law (differs from other fields): • Document based = o reading o analyzing o comparing o evaluating § documents § other sources of law Must synthesise into one coherent report Legal research Why legal research? To identify sources of law applicable to understanding a legal problem, and then find solutions No longer confined to just textbooks: must - identify analyse critique report on certain aspects of law as a tool of social interation and regulation of human conduct Non- Scientific research defined: (opposite of scientific research) “pseudo research” • Haphazard / careless / casual observations and statements o not logically supported o barges in without thinking (little/no method) o flimsy or no plan o trying to work too quickly • Produces findings that o cannot be reproduced o are based on researcher’s faith / hopes o erroneous o not well organised • Findings = o non-scientific + can’t be used for proper research purposes o questionable, unusable results o not successfully testable Virtually every lawsuit appeal criminal case legal process requires legal research Researcher could choose combination of - document-based and - empirical research Legal research is a process of finding an answer or searching for a legal precedent that can be referenced in pleadings or trial. Can help determine whether a legal issue is a 'case of 1st impression' (it is unregulated or lacks legal precedent). IRM1501 Summary 5 - Library – Research Support – Research Skills – Finding Legal Information Sources of South African law – Hierarchy of Legal Sources Authoritative Sources of Law all are subject to the Constitution = must align / change / be scrapped Persuasive Sources of Law Legislation / statues / acts [find at: Government Gazette, LexisNexis, Butterworths, Jutastat (1st and most important – has highest status) - publications that emanate from executive, legislative + judicial branches of government, at national, provincial and local level 1. Acts (national – by parliament) 2. Provincial ordinances (by provincial legislature) 3. Municipal by-laws (by local authorities) e.g. green / white papers, bills, statutes, proclamations, regulations, by-laws, unreported cases, reported cases, reports of commissions, treaties, conventions. Also see Law Reports. Other modern legal systems - that use similar legal principles / rules - historically related to ours = Roman basis e.g. France, Germany, Netherlands - English: e.g. company law / maritime law Constitution: S39(1)(a) and (b) when interpreting BoR, must “consider international law’ + may consider foreign law” _________________ Views of modern legal writers - judges - legal practitioners - academics - textbooks - journals - provide commentary - reference works such as: o dictionaries o encyclopedias o books o theses o dissertations o loose leaf publications o directories o case footnotes o bibliographies List of legal developments in a year: Annual Survey of SA Law, include: • Acta Juridica • SA Law Journal • Tydskrif vir Hedendaagse Romeins-Hollandse Reg (THRHR) • Tydskrif vir SA Reg (TSAR) • De Jure • and other journals for o labour o commercial o environmental law Common law (law of country not contained in legislation) Comprises: Roman-Dutch law + influenced by English law + African Indigenous Court decisions / case law / court cases Judicial precedent Lower courts bound by decisions of higher (superior) courts. 2 requirements for operation of precedent system: Ratio decidendi “reason(s) for decisions” Importance of particular precedent (of court’s decision) depends on court’s seniority. Obiter dictum (dicta) “remarks in passing” • Casual remarks by judge. • Not ant / applic. to te. • Not nec. for court to take into . • Not binding, but could persuasive force. • Obiter e.g.s: o Principle covered broader than needed to cover case. o Incidental remark. o Ask then answers hypothetical set of facts. o Quotes similar case. o Gives illustration. Law reporting Hierarchy of courts Effective system of reporting = lower courts know what higher-ranking courts have held. SA Law Reports = Published reports give: • Acts used in case • Arguments lawyers put before court • Legal rules - reasons upon which court based decision oReasons: court gives relevant legal . rules re:dispute. o= this is court ratio decidendi (to find this in a report, you will need to know applicable law) Courts divided into ranks, each court bound by decisions of courts above it. • = Con.Court binds all. • = SCA binding on all HC + all lower. • = HC decisions are binding to lower. Custom Unwritten rules, customs developed in communities carried down generation to generation African indigenous law Mostly unwritten, now formal status in SA law Keep proper records – reference in prescribed format – Modes of Citation • must be recognisable • must have existed long time • must be generally recognised + observed by community. • contents of custom (what custom involves) must be definite + clear. Custom must fulfil certain requirements to be recognised as legal rule. In each case before court, these 4 requirements will be applied to custom, by court, to decide if particular custom has the force of law. IRM1501 Summary 6 SU2: Document-based Research Document-based methods of research = qualitative (the nature of …) = quantitative (numerical / statistical) • mostly likely found in libraries: o law reports o legislation o textbooks o law journals o other literature Qualitative methodology is necessary if research question: • involves exploring how people experience something; • what their views are; • exploring a new area where issues not yet understood or are properly identified; • assessing where a new service is implementable; • looking at real-life context; • investigating a sensitive topic where flexibility is needed to avoid causing distress. Respond to Why? Are there answers? What has been written on this subject / question? Researcher must • immerse self in subject matter • cultivate contemporary concepts to • enhance understanding • get clarification of reality Researcher must answer or respond to Why? Researcher must respond to WHY? 1. Must make sense of / interpret 2. Must describe and explain in wider context 3. Uses words (written + unwritten), objects, pictures 4. Thereafter researcher reviews literature (of, e.g., authoritative and persuasive sources of law, and other literature) IRM1501 Summary 7 Document-based (qualitative / quantitative) research is important because: • provides current answers [NB MAKE SURE YOU HAVE MOST UP-TO-DATE INFORMATION AND LEGISLATION!!!] • information of what other scholars have written • whether anyone has written on the subject yet o has subject been fully explored? or is it saturated? or a gap? § is further study required? Components of document-based research Proper legal research = needs mastering set of intricate skills. Process of conducting document-based research needs following elements: 1. Planning of research 2. Doing of research 3. Reporting on your research Stages of research: The research process Will consider: a. Planning research b. Keeping track c. The problem statement a. Planning research F I A Plan Do Report Secret to success? Proper planning Systematic approach F I A Facts Issues Applicable law 1. Establish the FACTS 2. Identify the legal ISSUES (or legal question) involved 3. Find the APPLICABLE LAW Facts tell you what the issues are which tel