4.2 What is referencing and why is it important?
It is very important first to appreciate what referencing is in general and why it is important. There are at least four main functions served by referencing:
- acknowledgment of one’s sources
- supporting one’s claims
- contextualising one’s writing
- aiding the reader.[1]
It is worth briefly explaining each of these four functions.
4.2.1 Acknowledging your sources
Whenever you assert some fact or make a claim about the truth of some matter, you are relying either on your own direct knowledge or on information supplied by someone else. If you have relied on someone else’s information, then you need to tell the reader this by referring to that source. Failure to acknowledge your use of another’s work will often mean that you are, in effect, claiming that you are the original source. This can mislead the reader and, in some cases, lead to charges of plagiarism. The consequences of a finding of plagiarism – in both academic and professional contexts – can be severe, for lawyers in particular. Proper referencing will show the reader your sources and protect you from allegations of plagiarism.
TIP: DIVULGE YOUR SOURCES
If you make an assertion, claim or statement with no citation, you are implying that you yourself are the source of that information. If you are not the source, you run the risk of plagiarism. Where you assert or imply some fact or information that is common knowledge (‘notorious facts’, ‘what everyone knows’, e.g. that Canberra is the capital of Australia), then you do not need to cite a source. It can be a blurred line between what is and what is not common knowledge. If in doubt, err on the side of providing a citation.
4.2.2 Supporting your claims
In legal writing, whenever you make a claim or assert some fact or policy position, your reader may well think ‘But why should I accept that? What evidence is there for that claim? What authority is there for that assertion?’
If your purpose is to persuade your reader to accept what you say, then you should provide good reasons for why your reader should agree with you. The logic of your own argument will play a key role in persuading your reader, but you can support your claims by referring to other works and materials that provide the evidence or the sources of authority that you need.
TIP: REFERENCES SAY WHO YOUR (REPUTABLE) FRIENDS ARE
It is not enough to say, ‘This is my opinion and, trust me, it’s right’.
When you are giving references to support your claims, what you are effectively saying is ‘This is not just my opinion. Look at all these other very reputable people and organisations who back up this point!’
In legal writing in particular it is especially important to provide the legal authority for any proposition of law (i.e. a statement of what the law is) that you put forward. Such legal authority will ultimately be a particular decided case or legislative provision. If you say, for example, that it is against the law in Victoria to disturb religious worship, but do not tell your reader the legal source or authority for that claim, then your argument will be notably weakened. Indeed, in practice, a judge would not accept assertions of the law that are not supported by legal authority. (The authority for that claim is the Summary Offences Act 1966 (Vic) s 21(1).)
4.2.3 Contextualising your writing
Few of us write in isolation. It is almost always the case in academic and legal writing that the issues and topics one writes about have already been written about by others, even if not directly. Often it will be important that you be aware of the current discussions in the areas in which you are writing and that you try to connect with them in your own contribution. Appropriate references in your work to authors who have preceded you can therefore show that you are aware of the existing issues, positions and arguments and that you are situating yourself in relation to them. This contextualising also clarifies the strengths of your claims and allows you, sometimes, to cut out lengthy introductory concepts and move on to the real substance of your discussion.
4.2.4 Helping your readers find things for themselves
Good referencing enables your readers to find the materials you have used in your work if they want to. In professional and academic writing this is not merely generosity to the reader. Rather, it is an essential part of the cooperative enterprise that is legal and academic work, in which it is to be expected that your readers (who may include judges, other professionals or fellow researchers) will not just read your words and accept them but will themselves look up the materials you refer to as part of their own pursuit of the subject matter. This is particularly so in relation to primary legal sources such as cases and legislation.
Inadequate referencing that prevents your reader from retrieving the relevant information efficiently – or perhaps at all – is a professional and academic vice. If it happens in professional contexts such as submissions to a court or negotiations with other lawyers, you can expect the judges and your colleagues to view your contribution as lacking professionalism.
- Maurice Nevile, ‘Literacy Culture Shock: Developing Academic Literacy at University’ (1996) 19 The Australian Journal of Language and Literacy 38, 47. See also Jeffrey Barnes, ‘Cite Seeing: Citation in Legal Writing’ (Review Essay) (1998) 16(2) Law In Context 144, 150. ↵
