San Beda College GRADUATE SCHOOL OF LAW Mendiola THESIS WRITING GUIDE FR. RANHILIO CALLANGAN AQUINO, PhD, JD, JSD Dean The Thesis Requirement Graduate studies have characteristically culminated in the presentation of a thesis that achieves three: first, it allows the proponent to make a contribution to the field of study; second, it shares with the academic community – not only of the institution but of institutions world-wide as well – the output of one’s research; third, it provides the Graduate School Faculty a chance of assessing the competence of a student at independent research and at articulating his mature reflections in a field of study. The cardinal rule of thesis writing therefore is that the proponent must select a topic that truly interests her. The key criteria for the selection of a research topic are: 1. Does the topic interest me? 2. Does it enjoy currency or relevance? 3. Are primary sources readily available? 4. Is there a moderator on the Faculty capable of guiding research in the area? In sum, to be worthwhile, the thesis should not be perfunctorily written! Is there a minimum page requirement for a thesis? The general answer is “none.” Having thus responded, however, one must hasten to add that when a graduate theme can be disposed of in less than hundred pages then one wonders whether or not the theme was of sufficient magnitude or seriousness to warrant graduate investigation and to merit a graduate degree. It must be noted parenthetically that in other institutions there is a minimum page requirement for master’s theses and doctoral dissertations. We do not adopt that policy here, except to provide that theses of inordinate brevity suggest a study of insufficient seriousness or magnitude. The Peculiarity of the Law Thesis Law theses hardly have need of statistics. They are not empirical, and there is limited room for hypothesis-testing. Theses in law can center on:
1. The proposal of a new legal theory Example: In tort cases, Philippine Law has traditionally focused on the issue of “liability.” One might wish to propose approaching the issue of torts from the perspective rather of allocating risks in an economically sustainable manner. 2. A critical evaluation of accepted doctrine Example: In the light of the realities of present day contract-formation (with parties in many cases never even having met each other) one might criticize the “mirror-image” rule in regard to contracts and propose a plausible alternative. 3. Tracing the historical development of a legal provision or doctrine. Example: If one chooses to do a history of the doctrine of the “free exercise” and “nonestablishment” clauses relating to religion in the Constitution, one may go through the constitutional history of the provision in the American constitution, the jurisprudential development in American law, the history of the provision in the Philippine constitution, and jurisprudential development in the Philippine law. The thesis, quite importantly, should conclude with what the researcher believe she can infer from the historical review. 4. Comparative Jurisprudence Example: One can study the rule on filiations or paternity in common law and in civil law systems. For this, one can choose the laws of the common law jurisdiction (should generally be a prominent legal system, e.g., UK law) and the laws of a civil law system (e.g., Spain). One can also study the rules filiation only within different civil law systems (e.g. Quebec’s civil law system, Louisiana’s civil law system, etc.) and then compare the results of one’s study with what one finds in the Philippines taking care to point out advantages and disadvantages. 5. Expository Studies of this sort can be admitted only when there is a mass of conflicting or difficult-toreconcile doctrine, or when no expository studies on the subject have as yet been done. Example: the Anti-Money Laundering Law and its implementing rules and regulations are new. An expository study would be helpful. The study examines the background of the law, the circumstances it was meant to address, international precedent, foreign models, and foreign jurisprudence (since there is no Philippine jurisprudence yet). The graduate student of law will readily see that there is marked difference between theses proposed in the other fields of study – such as education and the empirical sciences – where statistics, measurements and hypotheses weigh considerably. The Thesis Proposal
Submitting the thesis proposal is the first stage in the writing of the thesis. It is this stage that the student proposes to the Faculty of the Graduate School the thesis he would like to write on and secures it approval. No student should proceed to write the thesis without the prior approval of the Thesis Proposal and the appointment of a Thesis Moderator. The Moderator guides but does not write for the student! He evaluates the research done, but does not do research for the proponent! Parts of the Proposal 1. Introduction The writer introduces his topic or theme of investigation. She points out the circumstances that make it relevant or that lend it currency. He attempts to elicit the reader’s interest in the subject. 2. Statement of the Problem This is a most crucial part of the proposal. The proponent must be able to articulate the problem of the thesis in interrogative form. The success (or failure) of a study depends in great measure on the degree of clarity with which the problem is formulated. Surely, when the student himself is not clear about what it is he is inquiring into, there is hardly any reason to expect a felicitous outcome for the research. 2.1. A thesis can have only one main problem. A thesis with more than one problem is a monstrosity. It is fulfilling this requirement that provides focus to the entire study. Sample Formulation 1. How effective are the rules on summary procedure in expediting the disposition cases? This formulation is DEFECTIVE, because “effective” is a very troublesome term (How does one measure efficacy?) unless one can provide a plausible operational definition for “effective.” On the other hand: 2. Are the provision of the Tariffs and Customs Code of the Philippines consistent with the provisions of GATT? This is reasonably clear and focused, and there is no mistaking the intendment of the thesiswriter. When the problem is lucidly and clearly formulated, it provides the proponent with a guide towards its own resolution. Thus, if one makes the second problem her thesis thesis problem, one obvious way to resolve the problem is by studying the Philippine Tariffs and Custom Code in parallel with the relevant GATT documents and determining consistency (or inconsistency).
The main problem is analyzed into sub-problems. If the problem selected is sufficiently serious to warrant the investigation of a graduate student, then it cannot be dealt with in one sweep. It will therefore be necessary to analyze it (= break it down) into sub-problems. Example: MAIN PROBLEM: Is the definition of Philippine territory embodied in Article 1 of the Constitution of 1987 consistent with the United Nations Convention on the Law of the Sea? SUB-PROBLEMS: 1. How does the Constitution define the waters enclosed by the archipelagic base-lines? 2. How did the drafters of the Constitution understand this provision? What does a study of the history of the Philippine constitution in this regard reveal? 3. How does UNCLOS define “archipelagic waters” and what is the concept of “archipelagic waters” in international law? 4. What are the principal points of divergence between our Constitutional provisions and the concept of archipelagic waters embodied in UNCLOS? 5. Is there a way of dealing the inconsistency? One then sees that each sub-problem constitutes a separate chapter of the thesis that is to be written. When all sub-problems are competently answered, the main-problem is also disposed of. 3. Objective and Significance of the study: This need not be an unduly extended portion of the proposal. It responds to the question. What does the researcher wish to be undertaking the study? Both theoretical and practical objectives are acceptable. One may wish to point out inconsistencies, or in contrast, show continuities. One may also wish to criticize and propose alternatives. One may wish to provide a historical explanation. One may wish to contribute towards the enrichment of received doctrine or jurisprudence by adverting comparative jurisprudence. 4. Limitations of the study Here one acknowledges the parameters or confines of one’s study. One, for example, can choose to study only the Constitution of 1987, or the Rule for the Examination of the Child Witness. If one uses foreign sources, that one depends on translation and not the original languages is itself a limitation that must be acknowledged in this portion of the proposal. If one confines one’s study to a certain period – one examines the doctrines of the Supreme Court on locus standi from 1990 to 2000 – that is a period limitation, as there may have been jurisprudence before or after the period markedly different from that of the period studies.
5. Definition of Terms This is among the most misunderstood of sections in thesis-writing. This section IS NOT MEANT to provide a glossary. Still less definitions come from a dictionary. It functions in the same way that the section on definition of terms in a statute works. It provides operational definitions of terms used in a SPECIAL or TECHNICAL manner in the study. Example: 1. By “child” in this study will be understood one who is below 16 years old. While this may not be the definition of “child” in R.A. 7610, the reader will know that when the writer uses the word “child” in the thesis, this is what he means. 2. By “negotiable instrument” in this study, the researcher only refers to commercial checks. Again, negotiable instruments may be both notes and bills of exchange, but there is nothing to prevent the researcher from confining his study to commercial checks and from using the terms “negotiable instrument” restrictively. In other words, this section alerts the reader to special uses of terms for the purposes of this study. This is the reason that definitions SHOULD NOT COME from the dictionary, not even a law dictionary. 6. Conceptual framework Once more, unless properly understood, this section can turn out to be a mélange of unrelated and incoherent propositions! The conceptual framework for purposes of a thesis in law is the legal theory one is working with, or that one presupposes. Example: One writing a thesis in the area of criminal law for example can acknowledge that he works within the “classical framework” of criminal liability, and by this is meant that he accepts as premise of his duty the doctrine that every person is capable of making a decision about being law-abiding or law-transgressing, and that should one make the latter decision, then should be punished in proportion to the offense. This, of course, is not the only conceptual framework possible in criminal law. One can also take as one’s framework the view that criminal liability is merely a way of maintaining social equilibrium or order and has nothing or very little to do with personal guilt.
One must then write the entire thesis within the framework one chooses. This is the most theoretical part or the study, as one must be able to identify the theory one is working on, and working with. Another example: If one writes a thesis comparing bank secrecy laws in the Philippines and in Switzerland, then one’s conceptual framework must develop the theme of the reasons for bank secrecy laws and the purpose such laws serve. This section calls for good and sound research not into legal provisions ut into legal policy, legal philosophy, and jurisprudence. 7. Review of Related Literature This section of the proposal informs the reader of the present status of academic research subject. What literature should be reviewed? Books or treatises in law, articles in law journals or law anthologies or monographs, as well as masteral and doctoral theses are studies. These are considered related if they treat of the same subject as the thesis, or of a related subject. The sources one will use – such as one’s references or case authorities – are not related literature. Example: For one writing a thesis on Letters of Credit, any journal article, book, treatise, web publication (provided it is from a reputable source), thesis or dissertation on letters of credit, commercial paper, transnational business, international credit transactions, and related topics will all be related literature. This section proceeds in the following states: a. Summarize the book, the article, or the thesis reviewed b. Identify its key features or the contribution it makes to the field of study c. Show how your own study will not be a mere repetition of studies already made. 8. Methodology and Procedure Graduate students have a penchant for using pretentious terms to describe their method and procedure: “critico-analytic”, “expository-comparative.” All this is crap! All that is asked is that the student answer the following questions in seriatim: a. How does one intend to resolve the thesis problem? b. What sources will one use? Legal texts? Congressional records? Travaux preparations? Judicial decisions? c. How will one treat the source? Analyze? Compare? Criticize? Do a historical review? Do
hermeneutics? d. What will one then do with the data one obtains? Tabulate, synthesize? Analyze? Arrangement of the Proposal I. The Problem 1. Introduction 2. Statement of the Problem 3. Definition of Terms 4. Objectives and Significance of the Study 5. Scope and Limitation II. Review of Related Literature 1. Review of related studies 2. Conceptual Framework III. Methodology and Procedure These three principal parts then constitute the thesis proposal. As soon as this proposal is completed, the proponent must submit it to the Dean who either approves, disapproves or suggests modifications. With the approval comes the appointment of the thesis moderator. Writing the Thesis The moment the proposal is approved – with particular focus on the main problem and its subproblems – the student goes ahead by: 1. Studying his sources: the constitutions, treaties, statutes, regulations, books, treatises, articles that constitute his sources. 2. Proceed to answer each sub-problem. Each sub-problem is treated in a separate chapter of the thesis. 3. When all sub-problems are answered, one writes the concluding part of the thesis entitled “Conclusions of the Study.” This includes: a. Drawing inferences from the answer one has given to the sub-problems. b. Inferences are not summaries. They are reasoned conclusions. Example: If one concludes that there is difference between the UNCLOS provisions on archipelagic waters and our Constitution’s definition of “internal waters,” then one might with to draw the inference that we might be in breach of our obligations under UNCLOS, and one might go further to suggest what can be done.
One’s bibliography is an indication of the seriousness (or lack of it) with which the research has been accomplished. Defective bibliography can then be a basis for the rejection of the thesis. NEVER INCLUDE IN THE BIBLIOGRAPHY books, articles or theses that you yourself have not read. Your bluff can easily be uncovered and land you in a great deal of embarrassment and inconvenience. Arrange your bibliography in the following manner: 1. Primary sources: a. Constitutions b. Statutes c. Treaties d. Administrative Regulations or Court Rules e. Court Decisions 2. Secondary sources: a. Books of the subject by legal authorities b. Articles in law journals or law publications c. Entries in legal encyclopedias d. Web-page sources
