Legal Scholarship as a Source of Law

Abstract

<p>This thesis advances a number of claims, some conceptual, some empirical, some normative. The conceptual claims are concentrated in chapters 1 and 2, 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 remainder of the thesis is dedicated to discussing whether legal scholarship – or, more precisely, a particular type of legal scholarship that can be described as standard or doctrinal – is used as a source of law (as the concept is defined in chapters 1 and 2) in modern municipal 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 recourse to legal scholarship by judges with judicial activism. It will be argued, however, that legal scholarship can plausibly be used to mitigate discretion. Indeed, 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 in fact does not.</p>