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Deals with conceptual, empirical and normative questions about the use of legal scholarship by judges
Adopts a Hartian philosophical perspective and, in so doing, attempts to illustrate the usefulness of the Hartian framework for the purpose of analyzing specific aspects of judicial practice
Draws from the experience of different jurisdictions in an attempt to be relevant to an international audience
This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart’s jurisprudence. Indeed, the book’s analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship – or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal – can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.
Content Level »Research
Keywords »Authorativeness of sources of law - Challenging the Association - Content Independent Reason - Decline of Juridical Reason - Distinction between mandatory and permissive sources of law - Distinguishing souces of law from criteria of validity - Formalism and Lack of Reference to Scholarship - Formalism and the Use of Legal Scholarship - H.L.A. Hart - Legal Argumentation - Legal Scholarship as a Source of Law - Legal scholarship as a source of law within positivism - Potential of Legal Scholarship - Rule of Law - Sources of Law and Judicial Argument - Standard Legal Scholarship - Where Does the Court Find Its Law?
Acknowledgements.- Foreword.- 1 Introduction.- 2 What Is a Source of Law?.- 3 Sources and Reasons.- 4 Legal Scholarship as a Source of Law.- 5 Formalism and the Use of Legal Scholarship.- 6 Normative Questions.- 7 Conclusion.