Abstract
As an exception to an otherwise non-normative project, this chapter addresses some questions pertaining to how scholarship ought to be used by judges. To be sure, it does not give very precise answers to the questions, if, when, and how scholarship ought to be used in judicial argument. Jurisdictions differ significantly with respect to (among other things) reliability of available scholarly work and judicial ability to understand and apply scholarly ideas. Precise answers to “if-when-how” questions should not be general but must take into account the various needs and peculiarities of different jurisdictions. It is argued in this chapter that (at least in democratic countries) judges should use scholarship candidly whenever they choose to use it. Examples are given of judicial decisions in which judges cite to scholarship in a way that suggests that it is serving to mitigate discretion when in fact it is not. The point is that this type of judicial decision exhibits an unjustified lack of sincerity.
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Notes
- 1.
For instance, the Brazilian Supreme Tribunal (recall their use of Claus Roxin) has often referred to German scholars of criminal law. But the court has been criticized by academic lawyers for misunderstanding the complex German scholarship to which it refers. It would pay to investigate what is generating misunderstanding and, on that basis, make recommendations as to how the court should deal with the relevant scholarship in the future. Shecaira (2013) has suggested that the court has displayed little sense of the historical context and purpose behind the theories of criminal law that it uses.
- 2.
To be clear, my contention is simply that judges seem to have a pretty good handle on things. To say that judges need not be lectured is not to say that they have nothing to learn from scholars. Indeed, there has been a considerable amount of intricate argument among scholars about the standards to be employed in the evaluation of legal scholarship. Some of this argument occurs between those who defend formalist scholarship and those who oppose it in favor of purely normative, non-formalist writings (see, e.g., Alexander 1993). It is unlikely that many judges, given their typical allegiances, will be persuaded by those on the non-formalist side of this debate. But there are other kinds of arguments—for instance, that concerning the degree of methodological rigor to be sought by legal scholars whose work hinges on empirical theses (see, e.g., Goldsmith and Vermeule 2002)—which judges cannot ignore with impunity. These questions are important and complicated, and judges certainly have a lot to learn, as we all do, by heeding the work that has been produced recently in the field.
- 3.
Notice the tension between the view I am proposing here and the account of legal scholarship suggested by the likes of Duxbury, Kötz, and Waddams. While those authors associate use of scholarship with activism, I am arguing that scholarship can be used in order to disguise activism.
References
Alexander L (1993) What we do, and why we do it. Stanford Law Rev 45:1885
Goldsmith J, Vermeule A (2002) Empirical methodology and legal scholarship. Univ Chicago Law Rev 69:153
Merryman JH (1977) Toward a theory of citations: an empirical study of the citation practice of the California Supreme Court in 1950, 1960, and 1970. South Calif Law Rev 50:381
Schwartzman M (2008) Judicial sincerity. Va Law Rev 94:987
Shecaira S (2013) Nihil humani a me alienum puto. Boletim IBCCRIM No 243, Fevereiro/2013. Available at http://www.ibccrim.org.br/site/boletim/capa.php?bol_id=284. Accessed on 01 February 2013
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Shecaira, F. (2013). Normative Questions. In: Legal Scholarship as a Source of Law. SpringerBriefs in Law. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00428-0_6
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DOI: https://doi.org/10.1007/978-3-319-00428-0_6
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