The Secondary Sources of Legal Research
Chapter Ninety-Seven
Syllabus topic 5, "Research Methods"
Pages 353 to 355 of 543
In one line
A secondary source is somebody's account of the law, and its proper use is as a route to the primary source and as an aid to understanding it, never as the authority for a proposition.
In the wording a student can write in an exam: secondary sources of legal research are works about the law rather than the law itself, comprising commentaries and textbooks, legal periodicals and journals, digests and citators, encyclopaedias, dictionaries, government and institutional reports that are not themselves instruments, theses and dissertations, and reputable online commentary; they are indispensable for finding the primary sources, for understanding a difficult area quickly and for knowing what has already been written, but they carry no authority of their own.
The kinds
Commentaries and textbooks. Section by section or topic by topic. Their value is that somebody has already collected the material and made sense of it.
Legal periodicals and journals. Where new arguments, criticism and empirical studies appear first, and the place a researcher finds out what is currently contested.
Digests and citators. Tools rather than reading: they tell you which cases exist on a point and what later courts did with a case, chapter 950.
Encyclopaedias and dictionaries. For orientation and for definitions of terms of art.
Reports and studies by government bodies, institutions and organisations. A Law Commission report is an interesting hybrid: it is a secondary source as to the law it describes, and a primary source as to what the Commission recommended, chapter 920.
Theses and dissertations, which are the least used and often the most useful, because somebody has already done the literature review a student is about to do.
And online commentary, which ranges from excellent to invented and must be treated with the caution of chapter 940.
What they are for
Finding the primary sources. This is the main use. A commentary's footnotes are a bibliography somebody else compiled.
Understanding quickly. A researcher entering a new field can read a good account in a day and save a fortnight.
Knowing what has been said. The review of literature, chapter 1290, is built from secondary sources and cannot be built any other way.
Finding the argument. Where a field is contested, the disagreement lives in the journals, and a dissertation that does not know what is disputed will re-argue a settled point.
And finding the gap, which is how a research problem is identified, chapter 1080.
What they are not for
Authority. A proposition of law rests on the provision or the judgment, not on the person who described it.
Quotation in place of the source. Quoting a commentary's paraphrase of a section, when the section is available, is a failure a supervisor will notice at once.
The Secondary Sources of Legal Research
Substituting for the reading. A researcher who cites a case they have read only in a commentary is exposed, because the commentary reports the case for its own purpose and may not mention the fact that destroys the argument.
And they are not current. A printed commentary is as at its edition; an online one is as at whenever it was last touched, which is usually unstated.
How to judge a secondary source
Who wrote it, and are they accountable? A named author with a reputation to lose is different from an anonymous page.
When? Look for the edition or the date, and if there is none, treat that as a finding about the source.
Does it cite? A statement of law with no reference to a provision or a case cannot be followed back and is worth nothing to a researcher.
Is it describing or arguing? Both are legitimate, but a reader must know which, and a source that argues while appearing to describe is the dangerous kind.
And does it match the primary source? The only real test, and it takes two minutes: check three of its propositions against the sources it cites.
The hierarchy among secondary sources
Not all are equal, and a student should be able to rank them.
Highest: the official report, such as a Law Commission report, which is prepared with access and consultation.
Then the standard commentary, whose author is named and whose edition is dated.
Then the peer reviewed journal article.
Then the unrefereed article and the working paper.
Then the student note or a dissertation.
Then general online commentary.
And below everything, the coaching note and the examination guide, which are written to be memorised and are not sources at all. A dissertation that cites one has told the examiner something about how it was written.
A worked example
A student begins a dissertation on legal aid and knows nothing.
Day one, secondary. Read a good account of the Legal Services Authorities Act to learn the shape: the machinery, entitlement, Lok Adalats. Note every provision and case it cites.
Day two, primary. Open the Act itself and read sections 3 to 22 with the commentary's map in hand. Notice what the commentary did not mention, which in this book's case was the regulations.
Day three, secondary again. Search the journals for what has been written on legal aid delivery in the last ten years, and for any empirical study.
Day four, the gap. The literature will very likely turn out to be almost entirely doctrinal, chapter 740, which is itself the finding that identifies the research problem.
Day five, primary. The regulations of 2010 and 2011, which the commentary summarised in a paragraph and which contain the whole of how legal aid is actually obtained.
The Secondary Sources of Legal Research
Notice the pattern. Secondary for the map, primary for the law, secondary again for the state of the field, and the gap between the two literatures is where the dissertation is.
Quick revision
Secondary sources are works about the law: commentaries and textbooks, periodicals and journals, digests and citators, encyclopaedias and dictionaries, reports and studies, theses, and online commentary.
They are for: finding the primary sources; understanding a field quickly; knowing what has been said, which is the review of literature; finding the argument; and finding the gap.
They are not for: authority; quotation in place of the source; substituting for reading the case; and they are never current.
Judge them by: who wrote it and whether they are accountable; when; whether it cites; whether it describes or argues; and whether three of its propositions check out against the sources it names.
Rank: official report, standard commentary, peer reviewed article, unrefereed article, student note, general online commentary; and the coaching guide is not a source at all.
Test yourself
1. Name six kinds of secondary source. Commentaries and textbooks; legal periodicals and journals; digests and citators; encyclopaedias and dictionaries; reports and studies of government bodies and institutions; and theses and dissertations, with online commentary as a further category.
2. Give the five uses of secondary sources. Finding the primary sources, since a commentary's footnotes are a compiled bibliography; understanding a new field quickly; knowing what has already been written, which is the review of literature; finding what is currently contested; and identifying the gap that becomes the research problem.
3. Why is citing a case read only in a commentary dangerous? Because the commentary reports the case for its own purpose and may omit the facts or the qualification that destroys the researcher's argument, and a proposition attached to somebody's account of a judgment cannot be checked against the judgment.
4. Rank the secondary sources and say which is not a source at all. Official reports such as those of a Law Commission; then standard commentaries with a named author and a dated edition; then peer reviewed journal articles; then unrefereed articles and working papers; then student notes and dissertations; then general online commentary. A coaching note or examination guide is not a source at all, since it is written to be memorised rather than to be checked.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.