Abstract
The chapter begins with an account of the type legal scholarship that, in virtue of its practical orientation and formalist style of argument, is most likely to serve the function of a source of law in modern municipal legal systems. This type of scholarship will be called “standard” legal scholarship; it might also be described as “legal dogmatics,” a term commonly used in the civil law world. The chapter goes on to discuss—and reject—some arguments to the effect that legal scholarship (standard scholarship included) cannot or does not function as a source of law. Arguments about what scholarship cannot do may be interpreted as conceptual arguments; arguments about what scholarship does not do are empirical arguments. Arguments of each type receive an appropriate type of rebuttal. Evidence is given of the use of standard legal scholarship as a source of law in modern jurisdictions. Scholarship is frequently used as a permissive source of law, but it has also occasionally attained the status of a “should-source”.
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Notes
- 1.
It should be emphasized that highly theoretical writings are not ignored by courts if they are ultimately prescriptive, or if, in spite of their abstractness, they have clear implications with respect to particular cases. The fact that highly theoretical scholarship is not entirely ignored by judges is shown by an interesting study regarding the citation practices of American courts: “… many of the articles frequently cited by courts are highly theoretical. In addition to the economic analyses noted above, William Eskridge and Philip Frickey draw upon Aristotle’s theory of practical reasoning to propose a theory of statutory interpretation; Cass Sunstein includes extensive theoretical discussion of the proper relationship between law and administration in his highly cited article about statutory interpretation after Chevron; Kathleen Sullivan invokes a variety of philosophical and economic theories to critique unconstitutional conditions; Richard Fallon and Daniel Meltzer summon jurisprudential theory to analyze the problem of retroactivity across a broad spectrum of constitutional cases; and Akhil Amar proposes unifying theories for treating the Bill of Rights as a whole. These and other articles on our lists demonstrate that courts do not eschew theoretical discussions by scholars, as long as they perceive those discussions as helpful in resolving the controversies before them” (Merritt and Putnam 1996, 888, footnotes omitted). The willingness of American courts to entertain abstract theory on occasion is not exceptional: Markesinis, discussing the decisions of the German Federal Court, claims that their arguments can be “highly conceptual, even metaphysical” (1986, 352), although their conclusions must inevitably be very concrete. One should, of course, keep an eye out for references to abstract scholarship that are presented as if they were capable of offering significant guidance to judges when in fact they are not. As I will explain in Chap. 6, judges can use legal scholarship in misleading ways. One such way involves suggesting that a scholar's opinion guides a judge’s decision when in fact that opinion is too vague to make an important practical difference. I am suspicious, to give just one example, of the references that the Supreme Court of Canada has made to Elmer Driedger’s claim that “[t]oday there is only one principle or approach [to statutory interpretation], namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (cited, e.g., in R v Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, para 28). There is a lot of room for reasonable disagreement about what the “scheme” and “object” of an Act are, and about how one is to go about determining the intention of Parliament. But no mention of the possibility of disagreement is made in R v Ulybel and other decisions citing Driedger’s famous passage, which apparently is treated as if its meaning were clear.
- 2.
Neil MacCormick (1993, 17–18) used the equally helpful adjective “institutional” (contrasting “institutional argumentation” with “pure practical argumentation”).
- 3.
For the sake of completeness, there is another respect in which judicial discourse is formalist. In the text I focus on judicial reliance on rules regulating primary behavior. But it is also the case that judges let themselves be guided by procedural rules (prescribing forms of action, assigning burdens of argument and specifying admissible evidence) that contribute significantly to the bureaucratic feel of their discourse. This is illustrated quite well in a hypothetical legal argument imagined by Prakken and Sartor (2004, 129): “—Plaintiff: I claim that defendant owes me 500 euros.—Defendant: I dispute plaintiff’s claim.—Judge: Plaintiff, prove your claim.—Plaintiff: Defendant owes me 500 euros since we concluded a valid sales contract, I delivered but defendant did not pay.—Defendant: I concede that plaintiff delivered and I did not pay, but I dispute that we have a valid contract.—Judge: Plaintiff, prove your claim that you have a valid contract.—Plaintiff: This document is an avidavit, signed by us.—Defendant: I dispute that this document is an avidavit.—Judge: Defendant, since the document looks like an avidavit, prove that it is not.—Defendant: This lab report shows that the notary’s signature was forged.—Plaintiff: That evidence is inadmissible, since I received it too late.—Judge: I agree: The evidence is inadmissible”.
- 4.
My conception of formalist scholarship is very similar to Rakoff's (2002, 1281) account of “embedded” scholarship: “… it is possible to have legal scholarship that richly considers cases, statutes, and the like—embedded legal scholarship—which is also theoretically rich and, still further, sophisticated in its use of the methods of other disciplines”. For Rakoff, scholarship that “richly considers” cases, statutes and the like is scholarship where “the problems that the authoritative materials present are resolved, the reasoning of those materials is taken seriously, and the boundaries of the existing law, while not necessarily given obeisance, are delimited” (ibid. 1280).
- 5.
- 6.
These are some of the more traditional (and still prevailing) forms in which legal scholarship appears. As we witness transformations in academic writing that include the “emergence of the short form, the obsolescence of exclusive rights, and the trend toward… disintermediation” (Solum 2006, 1071), new forms of legal scholarship, such as blog posts, SSRN papers and Wikipedia entries, appear and gain importance.
- 7.
This is what a commentary consists in according to Kötz: “A ‘commentary’ of a given statute… follows the structure of the enactment by stating for each article or section the court decisions, legal writing, and other materials that are relevant to a proper interpretation of what the article or section says. Some commentaries will also discuss the cases and draw from them a body of coherent doctrine” (1990, 193, footnote 36).
- 8.
The point I am trying to make here can alternatively be expressed through the claim that the routine legal case is easy, not hard. Critical Legal Scholars (Crits) are often described as having provided the most significant challenge to this intuitive claim. Persuasive answers to the Crits' challenge are found in Kress (1989), Schauer (1985), and Solum (1988).
- 9.
It is not clear whether Rubin is making a conceptual point or rather a point about the negligible likelihood that scholarship will function as an “authority” (in his sense). The arguments in this section should show that, on either interpretation, Rubin is mistaken.
- 10.
Flanders mentions only Posner's judicial decisions (as opposed to his academic works), but the point he makes can clearly be extended to scholarship.
- 11.
Frequently, references to Hogg may consist in indirect references to precedents or other mandatory sources which Hogg does no more than report in his work. But Hogg's books are not mere case reports or detached expositions of the relevant legislated norms. Hogg, like any other constitutional scholar, deals with complicated texts and attempts to impose rational order on often elusive lines of precedent. In those cases, where law is not clearly settled, Hogg's opinions could serve as genuine sources of law (To be clear, no claim is being advanced here to the effect that Hogg’s works are in fact sources of law in Canada (nor is it the case that Roxin is clearly a source of law in Brazil). I mention summary references to Hogg by the Supreme Court of Canada only to illustrate the type of evidence indicating that a work is being used as a source of content-independent reasons for action. The conclusion that Hogg is indeed a source of law in Canada would require further demonstration that his works are systematically treated by judges (or at least by Supreme Court justices) as sources of content-independent reasons. Recall that, for Hart, a practice—which implies some degree of constancy on the part of those who participate in it—has to be disseminated among senior legal officials for it to constitute part of the rule of recognition. To establish that Hogg is a source of law in Canada I would need, thus, to show not only that he has been used a source of content-independent reasons on occasion but that he is used as such in systematic fashion. The same sort of proviso applies to all references made to Canadian judicial decisions in this work.)
- 12.
Although I focus on municipal legal systems, the role played by legal scholarship in the creation of international law is also a topic deserving of attention: “I submit that states really never make international law on the subject of human rights. It is made by the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals. If you go to the State Department and they have a question, where do they find the answer? If they find it in Ms. Whiteman's Digest, they consider that they have solved the problem” (Sohn 1995, 399).
- 13.
Similarly, Germans speak of the “dominant opinion” (Markesinis 1986, 352).
- 14.
Bastarache J, concurring with the result reached by majority in Kapp, also appeals to scholarly consensus in his argument for a particular interpretation of section 25 of the Charter of Rights and Freedoms: “Practically all authors agree with the fact that s. 25 operates as a shield…” ([2008] 2 S.C.R. 483, para 94).
- 15.
MacCormick claims that common law judges who, in hard cases, justify their decisions on the basis of principles that have not been established by mandatory sources privilege principles that have been articulated in non-mandatory sources such as obiter dicta and respectable juristic writings. Judges avoid, to the extent that they can, resorting to principles hat have not yet been affirmed by any source of law.
- 16.
For instance, in Re B.C. Motor Vehicle Act Lamer J quotes Glanville Williams on the topic of mens rea only to assert that “[t]his view has been adopted by this Court in unmistakable terms in many cases, amongst which the better known are Beaver v. The Queen, [1957] S.C.R 531, and the most recent and often quoted judgment of Dickson J. writing for the Court in R. v. City of Sault Ste. Marie, supra.” ([1985] 2 S.C.R 486, par. 72) It appears that the opinion of the noted Welsh scholar is only reinforcing what precedent by itself was already capable of establishing.
- 17.
Merryman (1954) considers a more specific reason why authors may downplay the importance of permissive sources, apart from their failure to see how much can be learned through the study of those sources: “Thus it is said that only statutes and cases are produced by the authority of the government, by legislators and judges who are aware that they are engaging in a lawmaking process and who are in some sense responsible to those to whom the law will be applicable. This difference is supposed to be sufficiently great to justify classification of secondary authority in such a way as to suggest that it is clearly inferior as ‘law’ to statutes and cases” (ibid. 620). Merryman's own response to this view requires no supplementation: “It is obvious however that given the judicial practice of citing secondary authorities in opinions these works can and do play a part in the total legal process which is not greatly different from that played by primary materials. It is possible for cases to be decided, rules of law to be stated, lines of decision begun and perpetuated, solely on the authority of a textual treatment having its origins outside the judicial or legislative process” (ibid. 620).
- 18.
My point, to be clear, is exclusively about modern legal systems. Scholarly opinions seem to have functioned in the past as mandatory sources of law. Jestaz (2005, 124) describes a period in Roman history where the jurisconsultes (a class of jurists that differ significantly from the modern, university-based scholars) were empowered by the Emperor to emit opinions which the courts were required to enforce. Eventually, Jestaz suggests, these jurists acquired a status that was hard to distinguish from that of regular government officials: “… ces jurisconsultes perdent peu à peu leurs traits originaux pour devenir des rouages de l’État”.
- 19.
Some people are reluctant to classify the Restatements as instances of scholarship. This reluctance stems from the fact that scholars are not the only ones involved in crafting the Restatements (judges and lawyers also play a role) and that the Restatements are not written in a very scholarly spirit: they are explicitly a political enterprise. I am not persuaded. It seems that part of the authority of the Restatements derives from the fact that they are the products of experts many of whom are academics; and I am also not troubled by the fact that the Restatements are clearly meant to have a direct impact (a “political” impact) on judicial practice; all standard scholarship more or less aims to have practical impact.
- 20.
Some of the works systematizing Roman-Dutch law were authored by so-called institutional writers. A similar figure exists in Scots law (recall Green’s reference to Stair and Erskine). South African and Scots law are perhaps peculiar in explicitly recognizing certain writers (the institutional ones) as sources of law, even if they do so while affirming their hierarchical inferiority relative to legislation and precedent (see White and Willock 2007, 167–168).
- 21.
With respect to the Federal Constitutional Court, Kommers has made an even stronger claim: “The work of academic lawyers carries as much if not more weight in the Basic Law’s interpretation than judicial precedents… the ‘ruling opinion’… in the literature takes pride of place in the interpretations of the Basic Law” (2006, 193).
- 22.
In Belgium, adverse reactions from academics are also recognized as playing a significant role in the reversal of precedents from the Cour de Cassation (though not the role of a sufficient condition for reversal) (Rorive 2006, 283–289).
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Shecaira, F. (2013). Legal Scholarship as a Source of Law. In: Legal Scholarship as a Source of Law. SpringerBriefs in Law. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00428-0_4
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