Secondary Sources in Law

Secondary Sources

General: Primary and Secondary Sources

  • Primary Sources:
    • Consulted first by lawyers.
    • Binding and carry the most weight in legal arguments.
    • Judges and magistrates must apply them to court cases.
    • Include: the Constitution, legislation, case law, common law, and customary law.
  • Secondary Sources:
    • Support primary sources.

Secondary Sources Defined

  • Comprise writings and opinions of authors and legal researchers.
  • Do not create new law.
  • Lack binding authority; possess only persuasive value.
  • Presiding officers may be convinced by opinions and arguments of authors, using their writings in deciding a case.
  • Expert or researcher work can contribute to legal reform by leading to the development of legislation.

Usefulness to Law Students

  • Provide background information on various subjects.
  • Should be used together with lecture material and notes.
  • Opinions of authors can strengthen arguments in tests, examinations, and assignments.
  • Important to always use primary sources, and bear in mind opinions of authors are not always correct and may be open to criticism.

Commentary on Primary Sources

  • Secondary sources comment on primary sources, rather than create law.
  • Authors report on and review primary sources and provide recommendations of what the law ought to be.
  • Authors express views on new legislation or particular court cases in legal journals.

Types of Secondary Sources

  • Books
  • Legal journals
  • Foreign law
  • The internet

1. Books

  • New laws and judicial decisions can render books outdated.
  • Authors update books by publishing new editions.

2. Legal Journals

  • Publishing books is time-consuming and costly.
  • Legal authors and researchers publish in journals (periodicals).
  • Journals are more up-to-date, with quicker publishing times.
  • Published quarterly, i.e., 4 volumes a year, every three months.

Authority of Journals

  • Journals with the most authority undergo blind peer review.
  • Articles are published only if approved by two experts in the relevant area of law.

2.1 Kinds of Journals

  • General journals: cover various aspects of the law (contract, criminal law, constitutional law, etc.).
  • Subject-specific journals: cover particular topics (human rights, labour law).
  • During the LLB, students consult South African, foreign, and international journals.

3. Foreign Law

  • Section 39(1)(c) of the Constitution allows courts to consider legislation and case law of other countries when interpreting the Bill of Rights.
  • The word ‘may’ suggests that judges can use the judgments of other countries when deciding cases related to the interpretation of the Bill of Rights.

4. The Internet

  • The internet has changed the way we access information.
  • Access relevant websites for information.
  • Find information almost instantly, saving time and allowing us to view information that might not be available in book form.
  • Information is not always credible as anyone can make information available on the internet.