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Topics covered in the training
1. Research Methodology: Relevance and Meaning.
This section will review what research methodology entails and why it is relevant.
It will review international standards and expectations to set clear benchmarks. In short, it answers that questions: What is research? What is research methodology?
2. Methodology or Methodologies?
Jurisprudential, black-letter research, socio-legal research (law-in-context), critical legal research, comparative research, law and economics,…
3. Developing a Research Strategy
How to develop a research question, how to prepare an outline, how to prepare a draft, how to develop the draft to final paper, methods of review and revision.
4. Sources
What is a legal source (and what is not?). Primary and secondary sources. How to assess sources (authority and critical analysis)? How to use sources (citation v plagiarism)?
5. Electronic Sources
How to use electronic sources? What are the special problems?
Will be reviewed: General search engine, specialized search engines, academic depositories, authoritative websites, legal databases,…
6 Referencing
The importance of correct referencing and the techniques.
Legal Research Methodology:
What & Why?
Legal Research Methodology
An introductory story, freely told after Umberto Eco…
• Copy• Steal • Plagiarise• Lie• ….
= legal research methodology?
W H Y ?
Relevance
• To ensure that the legal argument is well-developed and argued in a coherent and consistent way and based on reliable, authoritative sources.
• A scientific method adapted to the discipline of law
• Upgrade general skills level
W H A T ?
Legal Research Methodology: what?
• Research
• Method
• Law
Methodology or methodologies?
• Jurisprudential
• black-letter research (doctrinal)
• socio-legal research (law-in-context)
• critical legal research
• comparative research
• law and economics
• …
Sources
What are legal sources
Reading legal sources
Organising information
Referencing & citation
Sources
• Primary sources
• A statement of the law itself from a governmental entity or international organisation, such as a legislative body, a court, an executive body or agency, President.
• Examples:
court decisions Law, acts, statutes contracts, wills, and other legal documents
In (doctrinal) legal research, an authoritative basis for any statements is required. Generally, primary documents are used as the basis for legal analysis. These primary legal documents can be decisions of a legislative assembly or decisions of judicial institutions (courts, tribunals,…) or decisions of executive bodies (for example ministries or governmental bodies). It is always preferable to start any doctrinal research from primary sources.
• Secondary sources
• An important part of legal research includes learning from previous interpretations by other authors that are published in books, journal or relevant websites. These documents are secondary sources.
• Examples:
Handbooks Legal journals Legal Notes Annotations
Organised or scientific reading
• Basis is table of contents (outline)
• For each article, book,…, a new entry (card, page, entry into a computer programme, e.g. endnote) containing:
full bibliographical reference a summary a list of relevant issues, possibly quotes – linked to TOC.
For short papers with limited sources, it can be better to write a full draft directly.
Referencing
• Any information gleaned from primary or secondary sources that are used as a basis for legal writing has to be referred to so future readers can retrace the research steps of a legal analysis to confirm, complement, or contradict the analysis. Through this critical legal analysis, the legal system and its interpretation is developed and refined.
• The best legal papers are based on comprehensive, if possible, exhaustive legal research at the basis for the legal analysis.
A legal paper should reflect the research that has been conducted by the author through its references. The reasons why a legal paper should be fully referenced include:
To make it possible future readers can find the materials that form the basis of the analysis in the legal paper.
To reflect the range of sources that form the basis of the analysis.
The support (or contradict) any legal statements made in the paper.
To avoid accusations of plagiarism or wrongful appropriation of other people’s work without proper acknowledgment.
There are various terms that are used in connection to references. These include: • citation • reference• quote• bibliography • references list• endnote• footnote
Referencing: Rules and Principles
• The general rule of referencing is that it must allow future readers to retrace the research that underpins the legal reasoning.
• Every jurisdiction, every journal often uses different rules but the differences are largely differences in style. The principles remain valid. Well-constructed references can always be adapted to the required style but it deserves recommendation to review the specific rules of the jurisdiction, journal, instructor, professor,…
• When collecting materials, ALWAYS ensure you collect full bibliographical information! Failing that you WILL regret it as you will have to look for it again or you will not be able to use the source.
• If you only need one page of a book, then photocopy only that page BUT write the full bibliographical reference on the page or photocopy the relevant information as well (esp. copyrights page).
Referencing: Rules and Principles
• For a reference, you refer to the specific page but in the bibliography you provide total number of pages for a book or start and end page for an article. So make sure you check this information.
Simplified Referencing: Back to basics
1. Articles •References to articles should include (in the following order): •Name author(s): First name or Initials followed by surname. •Title of article. •Volume and issue (where available) number of journal. •Title of the journal in full. •Exact page(s) referred to. •Year in parentheses.
Example:
Gunther Lauwers and Stefaan Smis, New Dimensions of the Right to Self-Determination: A Study of the International Response to the Kosovo Crisis, 6(2) Nationalism and Ethnic Politics 42-69 (2000).
2. Books• References to printed books should include (in the following order): • Name of author(s) or editor(s): First name or Initials followed by surname
(in case of an edited book, follow name(s) by ‘ed.’ or ‘eds’ in parentheses). NOTE: ‘.’
• The title and subtitle of the book (capitalised). • Exact page(s) referred to. • In parentheses: Place of publication: publisher, year of publication). Examples:Eva Brems, Human Rights: Universality and Diversity 574 (The Hague/Boston/London:
Martinus Nijhoff Publishers, 2001).W. Vandenhole,
The Procedures Before the UN Human Rights Committees: Convergence or Divergence? 243 (Antwerp/Oxford: Intersentia, 2004).
C. Fijnaut, J. Wouters and F. Naert (eds), Legal Instruments in the Fight Against International Terrorism: A Transatlantic Dialogue 620 (The Hague/Boston/London: Martinus Nijhoff Publishers, 2004).
Paul Lemmens and Wouter Vandenhole (eds), Protocol No. 14 and the Reform of the European Court of Human Rights 34 (Antwerp-Oxford: Intersentia, 2005).
3. Referencing chapters in edited collections
• References to book chapters should include (in the following order): • Name of author(s): First name or Initials followed by surname. • Title of chapter. • Name editor(s): Initials followed by surname, followed by ‘ed.’ or ‘eds’ in
parentheses. • The title and subtitle of the book. • Exact page(s) referred to. • In parentheses: Place of publication: publisher, year of publication.
Examples:• Dinah Shelton, Environmental Rights, in: P. Alston (ed.), Peoples’ Rights: The State of
the Art 187 (Oxford: Oxford University Press, 2001). • R.L. Siegel, The Right to Work: Core Minimum Obligations, in: A. Chapman and S. Russel
(eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights 45 (Antwerp/Oxford: Intersentia, 2002).
4. Cases (international) The following information should be contained in this order:•issuing court in full or abbreviated if abbreviation is commonly used (ECHR, ICJ)•date of judgment•case name in italics•parties to the case if not included in case name, in parentheses•in the absence of any indication the cited case is a judgment on the merits; any variation is to be stated: advisory opinion, dissenting opinion, provisional measures•reference or application number (if applicable)•source; however if accessed by internet, cite appropriately (i.e. adding URL and the date the material was accessed)•page(s)/paragraph(s) referred to (if applicable).
•Examples:•International Court of Justice:•ICJ 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (visited on 17 January 2006).•European Court of Human Rights:•Ect.HR (GC) 11 January 2006, Sørensen and Rasmussen v. Denmark, echr.coe.int/echr (visited on 17 January 2006), para. 25.•
• 5. Citation of UN documents• The following information should be contained in this order:• agency, body• title in italics (if necessary, e.g. narrative title)• document symbol• page(s)/paragraph(s) referred to (if applicable).
Examples:• UNSC, Reports of the Secretary-General on the Sudan (S/RES/1651) (2005).• UNGA, South-South cooperation (A/RES/60/212).
6. National Legal Materials
The mode of citation of legal materials employed in the country of origin of the article should be used for local use and may be used for international use, provided that sufficient information is provided to allow readers in any jurisdiction to retrieve documents cited.
Selected indicative examples:•India, Protection of Plant Varieties and Farmers’ Rights Act (2001). Kenya, Wildlife (Conservation and Management) Act, Cap. 376 of the Laws of Kenya (Act No. 1 of 1976, 8 Kenya Gazette Supplement, February 1976).•Switzerland, Swiss Federal Law Relating to Non-human Gene Technology 2003, Recueil systématique 814.91.
7. Web Page References
• References to specific web pages and specific URLs are accepted exclusively in situations where there is no other source for the cited material. In all other cases, a full cite must be provided. This can be supplemented by a web page cite for ease of reference but the latter cannot be instead of the former.
• In any case, any document whose source is traced to a web site must be cited in full. Authors must provide, where applicable, the author’s name, the title of the article/document and where possible the date of publication.
• Authors should indicate the last date on which they visited a particular website for each reference.
• BE CAREFUL: Anyone can publish anything on the internet.
8. References in other languages
The reference should be in the other languages, followed by the translation of English (Arabic is the paper is in Arabic) in square brackets.
Rule is sometimes applied inconsistently, e.g. not for more commonly spoken languages for that readership, in casu English, French, German
Example:
• 潘悦，反倾销摩擦：北京社会科学文献出版社， 2005 [Yue, Pan, Antidumping Conflicts: Beijing, Social Sciences Academic Press (China), 2005]
Note: Chinese names are reversed in references
• Using flags in references:
• See• See also• Contra• Similarly
Cross-referencing:
• See supra, note 54• See infra, note 12
This can be done through a wordprocessor BUT it often fails. Manually is safer.
• Ibid. (from ibidem = same place)• Id. (from idem = the same, in the same book or article but e.g. different
page)
