[biblio] Entry Types for Legal Citations

[Paul Stanley]

This (long) email is likely to be of interest only to those working
with Biblatex in the legal field.

In connection with the preparation of a Biblatex/Biber style for legal
citations following the OSCOLA standard, I have encountered three
particular issues with regard to the way that relevant information
"maps" to standard Biblatex fields. I appreciate that some of these
problems may be resolved by the increasingly flexible way that fields
can be mapped. However, two in particular are not, and I thought it
would be worth raising them.

The first is the proper use of entrytypes and entrysubtypes. Briefly
put, the three/four standards entrytypes that are obviously relevant
to legal citations (@legal, @jurisdiction and @legislation and
@commentary, together perphaps with @misc) are hardly sufficient for
the very varied types we have to deal with. My approach has been to
define a number of entrysubtypes. I am inclined to think that this is
the correct approach in principle; but it is an area where
standardisation of the various subtypes would be potentially
useful. In particular (a) it may be that some of the subtypes I have
chosen are inappropriately named. And (b) it may be clear to those
from different jurisdictions that we need further subtypes.

This email sets out the subtypes I seem to require. I invite any
comments on whether these are appropriate, and whether further types
are needed.

Please assume for present purposes that there is, separately from any
subtype system, a way of determining the "originating jurisdiction" of
any particular instrument/source. In other words the system can look
separately at entrytype, entrysubtype and "originating
jurisdiction". Exactly how that is done is matter for a different
email.

@jurisdiction 
=============

This is relatively simple. I have not found it necessary to define any
subtypes at all. (I use a different mechanism for working out what
jurisdiction, in the legal sense, the case originates from.)

The only real issue I have encountered is this. EU decisions in
competition and merger cases are, under OSCOLA, required to be treated
as a form of case, rather than legislation, although *most* EU
decisions are appropriately given the entry type of @legislation. My
approach has been to instruct the user to enter such "cases" using the
@jurisdiction entry type (I don't need a subtype, because I can work
out what I'm dealing with by examining the body that made the
decision). But would it be better to use @legislation, with either
some subtype a keyword, which citation styles could use or ignore? How
common is OSCOLA's differentiation between "case-type" decisions and
other decisions? Or should *all* decisions be treated as cases?

@legislation 
============

In general, for UK legislation, I work with five general subtypes, 
three of which are (I think) of potentially general relevance.

First a "constitutional" subtype. This is intended for legislation
which is regarded as constitutional, which often has special
requirements. Of course, the UK doesn't have a (written) constitution:
so I haven't made use of it there. Where I have made use of it is in
relation to the EU treaty, which I have defined as a form of
constitutional EU legislation, rather than as a treaty. That decision
makes sense for an EU-based lawyer, for whom the EU treaties have a
special status, and are hardly regarded as a form of treaty at
all. But I wonder whether it is actually correct? Lawyers in other
jursdictions will presumably regard the EU's founding treaties simply
as a form of treaty, and cite them accordingly. So it might be better
*not* to classify EU treaties as a form of constitutional
legislation. Again, comments would be welcome, especially from non-EU
lawyers. However, as a matter of general practice, I think the
"constitutional" entrytype has value.

Secondly, "primary" legislation. Perhaps this is a rather common law
category, since we tend to distinguish between legislation passed
by the primary legislature of a state, and legislation made by
administrative bodies exercising delegated powers. But since we DO
make that distinction, it makes sense for me that there are separate
subtypes; legislation from jurisdictions in which the distinction is
not made could perhaps classify everything as "primary", or one could
simply take "primary" as the "default" type, to apply if nothing else
is specified.

Thirdly, "secondary" legislation. This is the counterpart of "primary"
legislation.

Fourthly "procedural" rules, such as rules of court. These require
special formatting under English law, although technically secondary
legislation. It may be, however, that this would better be dealt with
using the proper subtype ("secondary") and a special keyword: indeed,
I am inclined to think that this is so. But that may depend on whether
special requirements, for indexing and formatting, apply to procedural
rules in other countries as well, or whether this is just an English
thing.

Fifthly, I have provided a type "draft". For my part I'm not sure this
really belongs in legislation at all. Draft legislation is not
legislation: it's policy material. I may well move it to legal. But
that invites the question: is draft legislation really best dealt with
as legislation, or as something else altogether? And if so, how does
one distinguish (if one needs to) between different *kinds* of draft
legislation.

The big gap in this classification, I think, is for codes. That is,
of course, because English law doesn't have them! But I suspect that
there would be mileage in having a *separate* subtype of "code",
because I would guess that civil law systems (as indeed, the US) have
special requirements for these, and may indeed distinguish between the
"law" (which might simply be to amend the code), and the "code"
itself. So the question is: should there be a special sub-type for
codes.

The remaining problem is EU law. Here I have made use both of the
"type" and "entrysubtype" fields, but in a slightly cunning (bad?)
way. The "type" represents the name of the type of measure, such as
"Regulation", "Directive" or "Decision" -- it is used in actual
formatting code, i.e. it is intended for printing. The "entrysubtype"
represents the effect of the legislation, and is used in indexing. The
reason for the distinction is that there are in fact some things
called "Decisions" (notably of the ECSC) which are in effect, in
modern EU terminology, regulations (i.e. measures of automatic general
effect), and it seems right that they get indexed with regulations. It
is of course notable that the EU categories simply do not map well to
the common law categories ("primary"/"secondary"). This makes me
suspect that civil law systems might need their own sub types as
well.

Perhaps the right thing to do here is to recognise that there are
likely to need to be different subtypes in each system.

@legal 
======

So far I have defined two subtypes here. The first, of general
application, is "treaty". I haven't attempted to distinguish between
bilateral and multilateral treaties, and apart from providing special
treatment (using a keyword) for the European Convention on Human
Rights, I deal with and index all treaties alike. (But see above for
comments on the EU foundational treaties.)

The other subtype is I think specific to the UK, namely a type
"parliamentary" to deal with debates in Parliament, reports of
Parliamentary committees and so forth. I think this is very much
UK-specific, and unlikely to matter generally.

@commentary 
===========

English law makes precious little use of commentaries. There are
various "institutional" works (most old texts from the seventeenth and
eighteenth centuries) which are handled as such, and I have provided
two subtypes (one called "enstyle" and one called "scotstyle") for
those, since English and Scottish institutional works are cited
differently (!). But I doubt that any of this is likely either to help
or harm those who work in areas where commentaries are widely used,
since they are really just special ways of formatting a very small
number of particular books. (A rational citation system would simply
treat them as books, I think.)

There are multivolume treatises and looseleaf works which are somewhat
akin to commentaries in English law, but @book, @mvbook, and @inbook
deal with them adequately.

I would however be interested in understanding what civil law systems
are likely to require of a "commentary" type. I can see that it is not
altogether straightforward.

Summary 
=======

As things stand, the taxonomy is more or less as follows:

jurisdiction --- no subtypes; EU decisions in competition and merger
	         cases treated as jurisdiction type

legislation  --- for English legislation, subtypes of "primary",
	     	 "secondary", "draft" and "procedural"; for EU
	     	 legislation subtypes of "constitutional",
	     	 "regulation", "directive" and "decision"; no current
	     	 provision for a "code" type

legal        --- subtypes of "treaty" (without differentiation between
	     	 bilateral and multilateral instruments, and currently
	     	 not including the EU foundational treaties) and
	     	 "parliamentary", which is a subtype of exclusively UK
	     	 interest

commentary   --- hardly used in common law practice: a few
	     	 "institutional" works which require special
	     	 typographical treatment currently dealt with here
	     	 under the subtypes "enstyle" and "scotstyle"

Or, to give another way of looking at it:

UK Legislation  --- entrytype @legislation, subtypes "primary",
   		    "secondary", "procedural", "draft"

EU Legislation  --- entrytype @legislation, subtypes "regulation",
   		    "directive", "decision"

EU Treaties	--- entrytype @legislation, subtype "constitutional"

Other treaties  --- entrytype @legal, subtype "treaty"

English cases   --- entrytype @jurisdiction

EU cases        --- entrytype @jurisdiction

EU decisions    --- (in competition cases) entrytype @jurisdiction

ECHR cases      --- entrytype @jurisdiction, no subtypes (Commission
     		    decisions are identified based on the institution field)

ICJ and international cases --- entrytype @jurisdiction

Commentaries    --- hardly used, but provision for two UK-specific
		    entrytypes; multivolume reference works as
		    @book, @mvbook and @inbook

Official documents --- draft legislation as @legislation with subtype
	 	       "draft"; parliamentary material as @legal or @report with
	 	       subtype "parliamentary", others simply as
	 	       @report (special provision is made for EU
	 	       documents; I haven't tackled UN documents, and
	 	       don't intend to do so).


Among the things this seems to me to leave undecided (quite apart from
whether it is generally a sound system) are the following: (1) How
would one deal with things like the statute of the ECJ or of the ICJ?
(2) How does one deal with foundational documents such as the UN
Charter? (3) How does one deal with "official" documents from
international bodies (e.g. the very complex system of UN documents,
which I am *not* intending to include in my OSCOLA system) (for UK and
EC documents I simply use the @report type).

=====

I would be grateful for any comments on these issues, or
generally. The essential question is "Where (using what combination of
entrytype and entrysubtype) should various different
instruments/sources go?"

Paul

-- 
Paul Stanley
London

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