Section 1.2.1: Characteristics of Primary Sources of Law

Understanding the legal system is a multifaceted endeavor. One must grasp the layers of the law, the flow of legal information, and how they are organized and accessed. The following sections will delve into primary sources, their characteristics, and the critical distinction between primary and secondary sources in legal research.

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Understanding Primary Sources of Law

Primary sources of law serve as the earliest expression of legal provisions. They typically refer to original documents such as statutes, regulations, court cases, and constitutions directly created by authorities like the legislature or the courts. However, these sources come with their challenges and idiosyncrasies, which we need to recognize.

Chronological Publication and Session Laws

One of the common characteristics of primary sources is that they are published chronologically. This means they are arranged in the sequence in which the laws were passed. This sequence-based arrangement gives rise to the term, “session laws,” referring to statutes published in the order they were enacted by the legislative body such as Congress.

However, this chronological arrangement presents a significant challenge for legal researchers. More often than not, a researcher is looking for laws related to a specific subject matter, not the time they were made. This chronological order can make the process of finding laws based on subject matter somewhat cumbersome.

Codification of Laws

In order to make legal research more manageable and intuitive, laws are often rearranged by subject matter and indexed. This reorganization process is called codification, resulting in what is known as a “code.” A code is an organized list of laws related to specific subject areas, thus making it easier for researchers to find laws relevant to their needs.

Contrarily, court cases do not lend themselves well to codification due to the complexity of the issues they deal with and the nuanced interpretation of laws. Hence, they usually remain published in chronological order. Nevertheless, certain tools and resources are available to aid in finding cases pertaining to specific subjects.

Official Versus Commercial Versions

Primary sources of law are typically published in two versions: official and commercial. The government publishes the official version and is often legally required to be cited in court documents. Despite this, legal researchers often turn to commercial versions for a couple of reasons.

The Appeal of Commercial Publications

Commercial versions of law publications tend to be available more quickly than their official counterparts, enabling researchers to access up-to-date information promptly. Moreover, commercial publishers usually add tools and resources to assist in legal research, such as annotations, references to related cases, and commentary.

Jurisdiction and Primary Sources

Unlike some secondary sources, such as textbooks that often cover both state and federal laws in a specific subject area, primary sources tend to be more jurisdiction-specific. This means you might have to peruse one source for federal laws and a different one for corresponding state laws.

Researching Across Federal and State Laws

In many situations, you might have to conduct research across both state and federal laws because they both can apply to the same factual circumstances.

Consider, for instance, you are a police officer conducting a roadside search of vehicles suspected of carrying contraband, such as illegal drugs. This matter falls under procedural law, with court cases interpreting constitutional provisions as the primary source of rules.

Notably, the Fourth Amendment of the United States Constitution governs searches. To understand how the Fourth Amendment applies to roadside searches, you’d consult U.S. Supreme Court cases (e.g., United States v. Ross, 456 U.S. 798, 1982). Additionally, each state has its own constitution, interpreted by the state’s Supreme Court. Therefore, you might also have to consider the procedural rules set forth by the state.

Summary

This Section delves into primary sources of law and their characteristics. Primary sources, including statutes and court cases, are typically published chronologically, which can create difficulties for researchers seeking laws on specific subjects. To counter this, laws are codified or arranged by subject matter.

Primary sources are published in official and commercial versions, with the latter often preferred for their speed and added research tools. Unlike secondary sources, primary sources are more jurisdiction-specific, requiring researchers to look at separate sources for federal and state laws.

References

United States v. Ross, 456 U.S. 798 (1982)

 

Modification History

File Created:  08/04/2018

Last Modified:  06/29/2023

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