Referencing is usually a standardized method of acknowledging sources of information or ideas.
What is Referencing?
Reference is needed both for intellectual honesty and the credibility of one’s research.
Reference is essential when quoting some authoritative views or statements from written works of others in the research work for literature review or substantiating argument.
Reference implies direct quotations of facts, figures, ideas, and theories from published and unpublished works.
Reference is a citation of legal authority, cases, Acts, regulations, law books, or journals systematically and acceptably.
A researcher should understand primary and secondary texts, locate cases and statutes, and use treaties, periodicals, digests, and standard practitioner texts.
The citation may provide important information, support one’s argument, acknowledge sources, or even acknowledge the authority one is contesting.
The citation requires sufficient information so the reader can assess the importance of the source or find it in the library.
The main objectives of the citation or reference are:
- to acknowledge and give credit to sources;
- to prove that the author is not plagiarising;
- to enable the readers to follow up and read more on the topic discussed; and
- to allow the readers to check references as quickly as possible.
The question of using reference or citation of works of others arises in the following three situations:
Direct quotation is recording the exact words of a source. Such direct quotation is critically important when such text or opinion is so significant or controversial, or its source is authoritative that it must be stated with utmost accuracy.
Sometimes it becomes necessary to state the text or opinion of others without any change or modification.
It implies summarising the passage of others’ work by omitting examples, explanations, and other forms of elaboration.
In the summary process, a page in the original text may become a paragraph in your research, and a paragraph may become a sentence or a few words.
It is a restatement of the works of others. It denotes repetition of other works but putting these in one’s own words.
Types of Reference Styles
There are two main types of reference styles;
Oxford Reference Style
In Oxford Reference Style, each citation is given a unique number in the order in which it appears in the text.
The details of the source are given either at the bottom of each page (called footnotes) or in a reference list at the end of the research paper (this is called end noting).
Thus, the Oxford reference system usually refers to the footnote/endnote system of citation of primary and secondary sources.
Use of Footnote and Endnote
A footnote is a note or a reference to a source of information that appears at the foot (bottom) of a page. Footnoting should be numerical and chronological.
Symbols can also use it. The footnote marker should appear after the relevant punctuation in the text (if any) and normally at the end of a sentence.
For clarity, it may be necessary to put the footnote after the word or phrase to which it relates. The advantage of footnoting is that readers can cast their eyes down the page to discover a reference source that interests them.
The endnotes are placed at the end of the paper, document, or chapter rather than at the bottom of each page.
A number is allocated to each source as it is referred to for the first time. Footnotes and endnotes serve the same purpose.
However, the researcher should be consistent in approach and use one or the other method.
Footnotes or endnotes should be used to provide authority for a proposition, acknowledge a source relevant to an argument, provide information that enables the retrieval of relevant sources and quotations that appear in the text, and provide other information not appropriate to include in the text.
A semicolon should separate the sources if a series of sources are cited within one footnote.
Footnotes or endnotes to the title and authors’ names should be designated as, etc. Footnotes or endnotes to the text should be designated as 1,2,3 etc.
If required, the asterisked footnote should give the author’s position, institutional address, and brief acknowledgments.
In footnoting a repeat citation, use the author’s family name and the page number if the page number is different from the earlier footnote.
If you use two or more different publications by the same author, then, in a repeat citation, you also need to include part of the title to distinguish publications by the same author.
When a particular source is cited more than once in a paper, the full bibliographic details need not be provided each time in a footnote. In case of a repeat citation, the Latin abbreviations “ibid,” “op.” “cit.” is used.
Use of id or ibid
In the citation, ‘ibid, (Latin word ibidem, meaning ‘in the same place’) means that the same authority is cited as the immediately preceding citation. Thus, it refers to the second mention of the same work with no intervening entries (ibidem, meaning in the same place) related to the same work, cited immediately before.
Use of supra or op.cit
Supra or op. Cit (opera citato, meaning in work cited} indicates a source that has been previously cited and does not immediately precede the relevant footnote.
Thus, supra is always accompanied by a footnote number represented by the symbol ‘note’ and followed by the number that directs the reader to the relevant source. In short, it means later mentioning the same work with intervening entries.
Use of Infra
It means citation of a discussion later in research work.
Et al. = and others
See- the term ‘See’ is used to indicate sources that support and supplement or assertion made in the main body of the chapter.
Generally, it directs the readers to sources that provide a general background to a particular concept or discussion point.
Sometimes researchers may read one author who cites another author. In such a case, the researcher should cite the primary author because he has not read the source.
Put it another way, when one source is referred to in another source, the expression ‘quoted in’ should be used to indicate that the first listed source is quoted directly in the second source.
Harvard Reference Style
Under Harvard referencing system gives a brief citation to a source within the text.
In this system, the sources of ideas, arguments, and supporting evidence are indicated by citing the author’s name and publication date of the relevant work, which is done at the appropriate point of the text.
It refers to citations in the body of writing the author’s surname with the year of publication.
The full details of all the citations should be listed alphabetically by author name as a reference list at the end of the writing.
Apart from this, if one wishes to acknowledge other sources that have been used, these should be given in separate bibliography.
The citation in the text is placed after the sentence or part thereof, followed by the year of publication, e.g., and a page number where appropriate.
The page number or page range is omitted if the entire work is cited. If an author published two books in 2005, the first (in the alphabetic order of the references) is cited and referenced as 2005a, the second as 2005b.
Then in the References section, a full citation is given:
Trechsel, Stefan, (2005) Human Rights in Criminal Proceedings, Oxford University Press.
Harvard citation system is used mainly in the sciences and social sciences rather than legal scholarship.
Harvard citation system is largely derived from the Bluebook, which the Harvard Law Review Association had prepared to provide a uniform citation system.
The Bluebook contains many rules for reference, both primary and secondary materials.
Sources of Reference
Legal research involves using various legal materials, i.e., resources or information ranging from legal concepts or ideas to the governmental institutions that formulate legal rules.
Regarding hierarchy and legal authority, sources of reference are divided into two main categories: primary and secondary sources.
Thus, referencing is usually a list of primary sources and secondary sources used in the research.
Legal materials comprise both officials, primary statements of the law, and an extensive body of unofficial secondary writings of scholars and practicing lawyers. “The primary sources of law are those authoritative records of law made by law-making bodies.”
Primary sources are authorized statements of the law by governmental institutions- whether found in cases, statutes, regulations, or decisions of administrative bodies.
Such documents include the written opinions of courts, constitutions, legislation, rules of the court, the rules, regulations, and opinions of administrative agencies.
In fact, the categorization of primary and secondary sources describes the degree of persuasiveness of legal information in question.
The primary source is binding, meaning that a court must follow it, or the secondary source is persuasive, meaning that a decision-maker can, if so persuaded, follow it.
Primary sources pay special attention to the legal authority of the rules and provisions in use and the type of legal systems involved.
In contrast, secondary sources are concerned with the explanation of the lay. Secondary sources give additional information and commentary about primary sources.
The secondary source refers to the law books, articles in books, journals, periodicals, treaties, decisions of the foreign courts, seminar or conference proceedings, annotated codes, legal dictionaries, digests, encyclopedias, theses, or internet sources.
The secondary sources are not binding upon the court. Still, specific secondary sources such as the writing of learned and highly esteemed authors may well be of significant persuasive value in selecting between conflicting authorities.
The secondary sources have a lesser role as they may persuade judges to accept a certain interpretation of a statute.
Nevertheless, they have some significance for both legal practitioners and academics. Secondary sources help them start the legal research process and may help them frame a legal argument when presenting their client’s case before a judge.
Primary sources are the legally binding rule or the official pronouncement of the governmental lawmakers, which figures prominently in all types of legal research. All computations of primary sources are publicly available.
There are the following types of primary sources for legal research:
International soft and hard law instruments.
While soft law refers to Declarations, Resolutions, Agendas, Programmes of Actions, and other documents, which are non-binding, hard law implies conventions, Treaties, Protocols, and Agreements, which have binding forces.
– Constitution is the basic primary source used in all countries. A constitution is a document embodying a set of fundamental principles. It is the foundation of a country’s legal system and order.
– Legislation made by the Parliament. A statute sometimes referred to as legislation, is a positive statement of legal rules enacted by a legislature. The legislation represents a major component of legal regulation.
The researcher should analyze the statute’s plain meaning and look for a broader context of the statute.
Sometimes, the researcher has to look into a statute’s legislative history, which provides a background of the legislature’s intent in adopting the statute.
– The rules, regulations, orders, and by-laws of those bodies to whom Parliament has delegated authority;
– the authoritative reports of the decisions of the courts and administrative tribunals.
Judicial decisions or case law
Judicial decisions or case law assist the legal researcher in interpreting the statute or constitutional provision in the context of a particular legal issue.
Judicial decisions are treated as the second body of primary sources. They are a valuable source for interpreting the meaning of codified law.
Judicial decisions or case law include international and municipal decisions ranging from international tribunals and arbitral bodies to national supreme court and appellate courts.
However, the mandatory nature of judicial decisions depends on the level of the court which issued the judgment. A lower court must follow a higher court’s ruling on an issue.
A higher court is not required to follow the judgment or ruling of a lower court, although that judgment may be persuasive.
It is now generally acknowledged that judges often create new laws when applying precedent to current problems. The doctrine of precedent encompasses three closely related concepts represented by the Latin terms stare decisis, ratio decidendi, and obiter dictum.
But in the narrow sense, precedent implies a judicial decision that contains a principle. The doctrine of precedent has been adhered to in common law countries because it promotes certainty, uniformity, and flexibility in the administration of justice.
The precedents are classified into two broad categories: original and declaratory precedents. An original precedent is created and applied as binding law for the first time.
On the other hand, a declaratory precedent does not create anything for the first time but merely declares or confirms the existing decision.
Stare decisis is the principle that the decision of a court is binding authority on the court that issued the decision and on lower courts in the same jurisdiction for the disposition of factually similar controversies.
The ratio decidendi is the holding or the principle of law on which the case was decided. The ratio decided sets a precedent and is binding on courts in the future.
Ratio decidendi is the court’s legal reasoning, which inevitably leads to the decision. It dictates that one court must follow the decision of a superior court when dealing with similar cases.
In contrast, “obiter dictum” is language in an opinion that is arguably not necessary to the decision. Obiter dicta statements are not binding on a later judge. However, it may be respected according to the judge’s reputation, the eminence of the court, and the circumstances in which it came to be pronounced.
Dictum comes from the Latin verb “decere,” “to say,” and refers to what is “said by the way,” specifically, that which is not essential to the holding of the decision.12 Dictum is an expression of opinion concerning the state of the law, and its resolution is not necessary for the decision.
From the academic researcher’s perspective, books and journals are always useful source materials for research.
They contain the accumulated wisdom on which the research project should build and the latest cutting-edge ideas shaping the research direction.
The basic advantage of a textbook is that it deals with a specific area in depth.
Moreover, the information contained in the books tends to be old. Legal writings in law journals are also a rich source of information on a particular point.
For current research and theories regarding the subject, scholarly journals should be consulted. Decisions of other jurisdictions are also treated as secondary sources as they are not binding.
Still, they can be persuasive because of the opinion’s depth of analysis and quality of reasoning.
Research work is likely to lose credibility if only secondary sources are used for information despite the availability of primary sources.
However, secondary sources are a starting point in any research, particularly literature search.
But avoid overreliance on secondary sources and try to obtain primary sources of interest.