Legal Research and Writing Skills: The Use of Comparative Research in Law Sample
Comparative research is one of the strategies used to compare and contrast legal practices in different countries. The researcher is required to compare different variables and determine how they correlate. Comparative research is an essential tool in legal practice as it helps in the development of sound laws and policies. When the legal practices of different communities are evaluated, the researchers can assess the advantages and disadvantages of each framework. Currently, there are several types of laws that are applicable in various religious groups as well as societies. These include common, Islamic, civil, Hindu, Jewish, and Chinese laws. Thus, comparative law is used in the analysis and description of different legal systems. Globalization has increased the need for comparative legal research. One of the essential applications of comparative study in law includes the development of constitutions. Legal advisors compare different foreign legal systems to develop suitable recommendations. Moreover, attorneys base their arguments on the comparative laws while defending their clients. There is no legal system that is fault-proof. However, by comparing different foreign legal systems, attorneys develop a framework that can guide the juries in developing their rulings. Moreover, the judges are also supposed to undertake comparative research before rendering the verdict. Therefore, comparative research has considerable application in enhancing economic globalization, democratization, and internationalism.
The Use of comparative research in law
Comparative research is widely used in the study and development of legal systems. The objective of undertaking comparative law is to unify the legal systems. It has enhanced the globalization of the legal systems. Currently, a wide range of legal systems is applied to resolve conflicts. However, all the legal systems focus on providing justice as well as preventing individuals from engaging in antisocial acts. Comparative research is also used to determine the flaws in existing laws. For instance, comparative law led to the formation of exclusionary rule which prevents the police from using evidence obtained in violation of the defendant’s rights. Therefore, democratic countries used comparative study to adopt progressive aspects from other countries' legal systems. Comparative research is utilized in the common law, socialist law, Canon law, Islamic law, Chinese Law, Jewish law, and Hindu laws.
The Common Law
Common laws refer to the legal precedence which is set by previous judicial decision. In most democratic countries, the Judge’s rulings are often part of the common laws. Therefore, other subsequent rulings are made based on the set precedence. Judges use the previous precedence in developing their verdicts. Common laws are used in comparative research in incidences where the different parties disagree about what the law states. They include customary laws as well as judicial decisions made in the past related cases. The judicial arm of government is tasked with the responsibility of interpreting the laws. Therefore, they are required to conduct comparative research studies to determine legal precedence in similar cases. The past precedential decisions are significant in the interpretation of the law. Judges are needed to rule based on how similar cases were decided in the past. However, previous rulings that form the precedence must be unchallenged by the superior courts. In case a court’s ruling is contested, then it cannot be used as precedence. Court decisions are often made based on given reasoning. The reasoning holds not unless a superior court challenges it. If a court in resolving a previous dispute heard and determined the case, then the principles which were used in the development of judgments must be upheld.
In some incidences, the disputes which are presented on the court are distinct. Therefore, judges and attorneys lack the previous precedence to justify their claims. Under such conditions, the judges are expected to exercise ethical discretion while ruling in favor of one party. The legislative arm of government is tasked with the role of making laws. However, it is impossible for legislators to envisage all the possible dispute scenarios. Thus, there are incidences in which the legislative statutes are silent or ambiguous. Therefore, the judges cannot depend on the set laws to make decisions. Thus, the judges can conduct comparative research to determine an impartial solution to the case. Even when the court makes decisions on distinct cases, they have to give reasons for their opinion. The reasons should agglomerate with the past precedence. Therefore, common laws are applicable in cases where there are no legislative statutes that can be referenced. The common laws serve as legal statutes that are made by judges based on individual cases.
It is essential for cases to be decided based on a consistent set of rules and principles. Comparative research allows the courts to develop the principle as well as reasons which they use to determine different cases. The common laws trace its roots back in the England King’s court, which was empowered to set legal regulations to govern the public. The King’s court was considered to be an ethical body that can give a solid basis for the law. Currently, over two-thirds of the countries are governed by common laws. A wide range of ethical rules governs societies. However, there are some acts that are unethical but not illegal. Similarly, other acts are illicit but ethical. Comparative research enables the legal experts to analyze both the legality as well as moral aspects of a given decision. Therefore, the judges must exercise ethical discretion in their ruling whenever there is no precedence or legislative guidance.
Currently, comparative research is applied in contract laws as there are no legislative statutes that provide comprehensive regulations. Therefore, judges have the discretion of ruling based on the common law. The courts also apply comparative law in the interpretation of the constitution. The legislative arm must enact laws based on the nation’s constitution. In most democratic societies, different divisions of governments are independent to prevent monopolization of power. Thus, the legislative arm makes the laws that are interpreted by the judiciary based on the constitution. The executive arm of government is tasked to implement the set laws based on how the court has interpreted them. Judges use common laws to interpret the constitution as well as determine whether a given act violates the constitutional provisions. The judiciary has the powers to declare that the laws which are made by the legislature are unconstitutional. In democratic countries, the constitution is the supreme law that provides guidelines on how the laws should be enacted and executed by the legislature and executive arms, respectively. However, given that the legislatures may have a conflict of interest, they may develop unconstitutional laws to favor their interests. Under such conditions, the judicial arm may veto the laws by declaring them illegal. Nevertheless, comparative research studies must be taken to prove how the set laws are unconstitutional.
Comparative law has a wide range of applications in the development of legal jurisprudence. Law scholars use research strategies to develop legal systems. Comparative studies help to develop the methodologies for finding consistent principles in addressing legal challenges. According to Hoecke, “comparing domestic law with the way the same area has been regulated in other or more countries has become compulsory doctrinal legal research. ” Comparative law is enhanced by globalization. It also enhances the development of legal practice. According to Pieters, “Comparing, and thus also law comparison is before anything else an activity, which may pursue various goals. ” Comparative law has attracted a wide range of scholarships in legal education.
Comparative research is also utilized in the interpretation of the legislative statutes. Although the legislature makes the laws, they are not empowered to interpret how the regulations will be applied. The judiciary applies comparative research to interpret the laws in case the judicial arm conflicts with the executive. The president may issue executive orders without the approval from the parliament. However, the legislative and judicial arm checks the powers of the executive by ensuring that the executive orders are constitutional. The judiciary may declare the executive orders unconstitutional based on comparative research.
Comparative law is significantly applied in presidential petitions in most democratic countries. According to the report by Patterson, a presidential election can only be nullified if the courts prove beyond any reasonable doubt that the electoral body violated the statutory as well as constitutional regulations. In some incidences, the electoral body may conduct a free election but fail to follow the set procedures and guidelines which are stipulated by the statutory bodies. The judges will be tasked to determine whether the technical omissions can warrant nullification of the elections. Some juries may claim that the process is a significant part of the election and must be duly followed by the electoral body to guarantee a free and fair election. However, some judges evaluate whether the irregularities affected the credibility of the election. If the omissions conducted by the electoral bodies do not have significant ramifications on the results, then some judges may use the implications to uphold the results. Given that human beings conduct the elections, they are bound to make some clerical mistakes which may adversely affect the results. Comparative research is used to determine whether the court should assess the credibility of the process or sanctity of the conveyed results.
Comparative research is also used in legal systems to distinguish between first-degree murder, second-degree murder, manslaughter, and self-defense. First-degree murder occurs when the defendant intentionally executes the victim with malicious intent. For instance, if armed robbers attack the victims and kill them in the process, then they may be charged with the first-degree murder. Their charges will be based on the acts committed. Second-degree murder occurs when an individual is provoked by the victim to execute the murder. There are some incidences in which the murders act out of anger. Consequently, they have a justifiable reason to undertake the murder. For instance, if an individual encounters the person who defiled his or her daughter, then they may take physical actions against the perpetrators. These may include killing them. Under such conditions, the court may use comparative research to determine whether the act was a first or second-degree murder.
Self-defense occurs when an individual kills the victims because they are trying to protect their lives. When an individual is armed and possesses a significant threat to the public, then the law enforcement officers are justified to shoot and kill them. For instance, if armed criminals refuse to surrender, then they are likely to be killed by law enforcement officers. Manslaughter occurs when the defendant accidentally kills the victim. In some incidences such as car accidents, one may unintentionally kill others. Under such conditions, the court is required to conduct comparative research to determine the defendant’s intentions. When the defendant attorneys prove that their clients engaged in manslaughter, then he or she may face less severe charges as compared to first-degree murder.
Comparative researches utilized to determine the desired sentence for the victims. In some jurisdictions, judges use the actor’s intentions to decide whether or not they are guilty. A defendant may not have committed a crime, but they were planning the act. For instance, if the law enforcement officers arrest armed robbers near a bank, then they may assume that they were planning to rob the organization. The judges may use the prosecution’s argument to determine whether the defendant’s intentions warrant the charges. In other legal systems, the defendant can only be convicted based on the acts they have already committed. Under such jurisdictions, the prosecutors are unlikely to win the case as they must prove beyond any reasonable doubt that the suspect engaged in the illegality. In some incidences, the defendants are arrested when they are just about to commit the crime. For example, armed robbers may be arrested when they have already broken into the bank and have used arms to threaten the employees or security personnel. The verdicts for attempted murder vary depending on society’s legal system. Some legal statutes provide severe punishments for attempted murder. They believed that an individual who attempts to kill others is guilty as the one who has already committed the act.
The courts are required to strike a compromise between the rights of the accused persons and justice. In most democratic countries, the public has the right to privacy. Therefore, it is illegal for law enforcement officers to access private residence without the owners’ consent or valid court orders. The court might reject pieces of evidence provided by the prosecution team if they were illegally acquired. Comparative legal research is used to assess whether the law enforcement officers complied with the law while collecting the pieces of evidence against the defendant. In most democratic countries, the bill of human rights may be abused by the public. For instance, although the bill provides for freedom of assembly and association, some individuals may use the freedom to propagate crime. Most of the gross crimes are conducted by several individuals who assemble and plan the act. Therefore, the law enforcement officers, as well as the prosecution team, must prove that a given assembly was a threat to the public’s safety for their rights to be restrained.
The public may also abuse freedom of speech. While the bill of human rights provides freedom of expression, it is unethical for individuals to use their liberty to affect other people’s welfare. For instance, insulting or abusing others is a crime. Therefore, if one uses their freedom of speech to commit other crimes, then they are likely to be charged in court. Nevertheless, the public is free to criticize the government without victimization. Given that the sovereign power belongs to the citizens, they are free to complain as well as castigate the government for undertaking projects which may not significantly serve the public’s needs. Comparative research is used by juries to evaluate the defendant’s conduct and determine whether they violated the constitution or engaged in crime.
Comparative legal research is used to ensure that the law enforcement officers strictly conformed to the law while securing the confession. The law enforcement officers cannot use illegally obtained confessions and evidence against the defendant. Moreover, the police are restricted from conducting unreasonable searches without probable cause. Currently, the US constitution protects the public against police brutality and unethical conduct. Therefore, law enforcement officers are restricted from brutalizing the victims or securing pieces of evidence against the established procedures. Comparative legal research is used to determine the need for compliance. First, the police officers must seek a search warrant which has a probable cause to conduct searches and seizures on private properties. In case the police officers are conducting a patrol near a private premise and detect that the home has illegal substances such as drugs, they are required to seek the homeowner’s permission to search the premise. Alternatively, the police officers should seek a court order which specifies the location to be searched as well as the probable cause. The court officials must also sign the search warrant. If the police officer searches and seize the illegal product from the private premise without the owner’s permission or their consent, they will have violated the due process. The prosecutors may prove that the defendant committed illegality as they possessed illicit products. However, the case may be dismissed because the law enforcement officers used illegal means to acquire the evidence.
Judges use comparative research, common law, and past precedence to determine whether the prosecution’s evidence should be accepted even when they were illegally obtained. If the past courts set a precedent of rejecting such proofs, then the current ruling must be based on the previous reasoning. The law enforcement officers are constrained to follow the law so that the public cannot be falsely accused. Therefore, the burden of prove lies with the prosecution team. The accused person should not be coerced to engage in self-incrimination. Thus, during interrogations, the police officer must inform the accused person about their rights to remain silent. The Miranda warnings alert the suspect that the police officers are seeking evidence that may be used against them in court. Therefore, whatever they say should protect their interests against incrimination. If the police officers fail to give the Miranda warnings, the defendant’s attorney may claim that the due process was not followed. The exceptional rule deters law enforcement officers from using illegally acquired evidence. According to Legal Institute Information, “American courts use the exclusionary rule to deter police officers and other government agents from abusing constitutional rights. ” Therefore, the courts will use comparative law to determine whether to accept the prosecution’s confessions.
Application of comparative research in plea bargaining
In some incidences, the defendant accepts to cooperate with the prosecution so that their charges are reduced in exchange for a secured confession. Under such conditions, the defendant’s attorney, as well as the prosecutors, conducts comparative research to determine how similar cases were determined before. The defendant may accept to engage in plea bargaining when they are certain that they will be convicted. Therefore, they strike a deal with the prosecution to accept less severe charges to avoid going through the trial process. Nevertheless, there are several disadvantages to plea bargaining. First, the defendant is not assured that the judges will consider the plea and withdraw the initial charges. Plea bargaining may impede justice as the trials are avoided. Moreover, a plea bargain may prompt capital offenders to be charged with lesser crimes. For instance, a suspect who executed first-degree murder may be charged with manslaughter.
Comparative research is used to determine the best solutions that the defendant may use to gain an acquittal. A significant number of criminals are acquitted for lack of sufficient evidence. Similarly, some innocent suspects are convicted as they are advised by the prosecutor to accept the lesser charges. However, plea bargaining may have benefits to both the prosecution as well as the defense team. First, it saves the defendant's time and resources that would otherwise have been used in the full trial. The legal process is often time-consuming and expensive. The prosecutors, judges, and attorneys spend time during the process. In case the defendant has hired private attorneys, he or she will be required to pay them over the trial period. However, if the defendant pleads guilty, then the process is shortened, and the court may also be lenient on the ruling. Therefore, comparative research is required in plea bargaining to help the defendants make favorable decisions.
Application of Comparative research in investigating the conduct of law enforcement officers
The police officers are critical stakeholders in the criminal justice system. They are tasked with the responsibility of maintaining law and order. However, studies by Levine (2018) have shown that some law enforcement officers violate the legal statutes while arresting the suspects as well as conducting the investigations. The defense team often tends to evaluate the conduct of law enforcement officers while undertaking comparative research. One of the unethical conducts that the law enforcement officers use to secure prosecution includes luring the suspects to engage in illegality. The police officers are required to provide evidence that the suspect violated the law. However, it is at times difficult to prove that the suspect engaged in gross misconduct. For instance, police officers may have intelligence information that a given individual participates in drug trafficking. However, they do not have solid evidence to prove the case. Therefore, the police may fake to be one of the drug barons and then lure the trafficker to sell illicit products. By attracting the suspect to sell drugs, the police gather evidence of the transactions which are then used to in court against the defendant.
The juries are supposed to use comparative legal research to determine whether the evidence presented by law enforcement officers is valid. In most democratic countries, legal precedence has been set to reject testimonies which are collected against the legal framework. Therefore, judges are required to apply the set previous court reasoning in determining whether the evidence presented by the prosecution team is valid. In several incidences where the law enforcement acquired pieces of evidence illegally, the courts in the US have declined their claims. Consequently, law enforcement officers should not use tricks to secure pieces of evidence against the suspects.
Comparative research is also applied in the judiciary to evaluate the form of punishments required for defendants who committed offenses, but their rights were violated. For instance, the prosecution may prove that the defendant committed a crime. However, if the law enforcement agencies failed to follow the due process, the judges are torn between punishing the criminal and discarding evidence which are presented by the prosecution. Justice should not be denied on a technical basis. Thus, the courts must apply comparative law to evaluate the types of interventions that may be used to address situations where both the prosecution and defendants violated the law. In pure democratic states where judges strictly follow the law, they may discard evidence that was acquired illegally. Nevertheless, such a ruling may deny justice as the criminals are acquitted. Criminals present significant social and security challenges to the public. First, they endanger public lives by engaging in gross misconduct and illegal activities such as drug trafficking and robbery with violence. When the courts acquit the criminals on a technicality basis, the public is bound to suffer as the defendant is not rehabilitated. Moreover, criminals tend to influence others to embrace antisocial behaviors. For instance, the drug traffickers influence the public to use drugs so that their business can thrive. Therefore, denying justice on a technical basis may cause other considerable problems to the public. Thus, judges are required to exercise ethical discretion in determining how defendants who have been accused can be rehabilitated as well as preventing the law enforcement officers from violating the law.
Comparative laws are also used to determine whether the techniques used by the police officer to secure evidence went beyond the required standards. In some cases, the police officers entrap the public to obtain a confession. For instance, there are incidences in which law enforcement officers pretended to be customers for prostitution suspects. Therefore, they offered lucrative offers in exchange for commercial sex. Then, the police officers accused the entrapped suspects of engaging in prostitution. Comparative laws are used in such cases to evaluate whether the suspect was a prostitute or was lured by the police to embrace the illegal act. According to the report by Rose, an innocent person may readily accept the offer of one hundred thousand dollars to engage in commercial sex even when they are not prostitutes. Therefore, the prosecution team may not use the suspect’s response to the offer in determining whether they are prostitutes. Consequently, the law expects the police to secure evidence without entrapping the defendants. The use of comparative research may be used by the courts to predict how previous courts reasoned in rendering judgment on similar incidences.
The other unethical acts used by the police to secure evidence include using detective who pretends to be lawyers. There are incidences in which law enforcement officers pretend to be the defendant’s lawyer to obtain a confession. Under such conditions, the suspect is bound to engage in self-incrimination as he is likely to testify against him or herself. In democratic countries such as the United States of America, the judges may not accept evidence secured when the police officers fake to be the suspect’s attorney. The accused persons have a right against self-incrimination. Consequently, it is unfair for them to be asked to confess against themselves. In the Miranda warnings, the police officers advise the suspects to say the truth or keep silent as whatever they utter may be used against them in the court of law. The accused persons should also be treated as if they are innocent until proven guilty by the court. Nevertheless, they should be free to consult with their lawyers even during their interrogations. Most of the legal practices in the US democratic systems were based on comparative legal research. Although the suspect may have committed illegality, he or she has a right to be heard in the court of law. Similarly, the defendant should seek legal aid even when they cannot afford to pay the attorney.
Comparative research in law delineates the need for allowing the accused person to invoke their rights to an attorney. The primary objective of the interrogators is to secure a confession that may later be used in the court to convict the defendant. However, the defendant often desires to prove their innocence. Nevertheless, some of the accused persons and suspects may not be aware when they are incriminating themselves. Consequently, it is prudent for them to seek the services of an attorney or a legal counsel during interrogations. The law enforcement officers should stop the interrogations ones the suspect requests for the presence of his or her attorney. The evidence secured after the suspect has invoked his or her right to a council may not be acceptable in court. There are several incidences in which courts have declined the prosecution’s evidence, especially if they were secured in the absence of the defendant’s attorney.
Most suspects fail to invoke their right to a council as they are financially constrained. The cost of legal services in most countries is prohibitive. However, in democratic states, all accused persons, including those who are disadvantaged, have a right to counsel. The police officers should begin the interrogations by first reading out the rights of the accused person. Further, the interrogators should inform the suspect that they have a right to a free legal counsel in case they are financially constrained. Legal aid is paramount in the criminal justice system as it ensures that the accused persons are adequately represented in the court of law. The suspect should be given sufficient time to consult with the attorney before the interrogations begin.
Application of comparative legal research in exceptional rule
The exceptional rule provides incidences in which the court may deny the prosecution’s claims, especially if they violated the legal statutes. In some democratic countries such as the United States, the public have a right to privacy. Therefore, the government should not access the public’s private information without their consent. Nevertheless, there are incidences in which the intelligence department accesses the public’s emails, telephone communication, and GPS location without a court order or the public’s consent. The law enforcement officers, as well as public agencies, must first seek a court order before accessing the public’s privacy. The warranty should have a probable cause as well as a specific duration. It is unethical for the government to track the public’s private communication for an extended period. Comparative research is applied when the law enforcement officers obtain evidence after the court warrant has expired. Although the police would have substantial evidence that the suspect committed illegality, the evidence was collected out of the stipulated time. The court envisages that the government should stop interrogating the public after the set warrant period expires. Different legal systems have diverse strategies that can be used to resolve the cases in which evidence is secured after the warranty has expired.
Most conservatives believe that the court should evaluate the illegalities committed by the suspect rather than methods used to secure the evidence. Under such conditions, the prosecution team can readily obtain confession as they are not compelled to conform to the stipulated regulations strictly. However, most liberals believe that the court must render their rulings based on how the prosecution conducted their investigations. Consequently, in case the evidence was secured after the set warrant period has expired, then the court does not evaluate the merit of the case. Instead, the illegally obtained evidence is discarded, thus acquitting the defendant irrespective of the crimes committed.
Comparative research analyses the advantages and disadvantages of setting strict regulations for law enforcement agencies. The first advantage includes ensuring that justice is served without influencing or entrapping the suspect. Moreover, the comparative research studies ensure that the law enforcement officers do not violate the laws while arresting as well as interrogating the suspects. One of the significant challenges in the contemporary US criminal justice system includes police brutality. Some law enforcement officers use excessive force in apprehending as well as interrogating the suspects. However, the police use force without even determining whether the suspect is innocent or guilty.
There are incidences in which the government is compelled to restrict the public’s rights and liberties for the common good. For instance, during curfews, the public’s freedom of movement is restricted. Thus, the public is not allowed to move freely during restricted hours. Comparative legal research evaluates the ethical reasoning behind such violations. During security operations to combat gross crimes such as terrorism, the government may also access the public’s communication to determine the terrorists’ communication trail. However, during such investigations, the intelligence officer may encounter other illegal acts or plans which are being conducted by other individuals. Consequently, the government may use such evidence in prosecuting the victims. Comparative research evaluates the ethical issues surrounding the use of public communication data to accuse them. Typically, the court may issue a warrant for the government to access the public’s confidential information. However, the warrant must specify the type of information being sort. In case different information is secured in the process, then the court will conduct comparative research to evaluate the validity of the obtained evidence.
Comparative research is also extensively applied in determining the regulations that may be used to access the public’s confidential healthcare information. Healthcare organizations are not supposed to disclose their patients’ data to third parties. However, the government must have a justifiable probable cause as well as a court warrant for them to obtain the patient’s information. Alternatively, the client can consent for the public to access their private healthcare details. There are incidences in which the parole officers access the inmates’ healthcare information to determine whether they have violated set regulations.
Based on the analysis, it is evident that comparative research has an essential application in common laws as well as the development of democratic practices. The judicial arm of the government undertakes an extensive comparative study to evaluate the precedence set by the previous courts. Comparative laws allow the judicial arm to set consistent principles that are used to render rulings for different cases. Law scholars should leverage the comparative research methodology to compare the advantages and disadvantages of various legal systems.
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