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Legal Scholarship as a Source of Law

Part of the SpringerBriefs in Law Book Series

DOI: 10.1007/978-3-319-00428-0

ISBN: 978-3-319-00427-3

Publisher: Springer International Publishing - Springer Journals

Jul 10, 2013

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Chapter 1Introduction

Shecaira, Fábio

Pages: 1 –7

[The book proceeds on the basis of admittedly contentious theoretical assumptions. Some of these assumptions pertain to the positivist outlook that shapes the book’s understanding of the concept of a source of law. Other assumptions have to do with the functionalist method with which the book...
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Chapter 2What is a Source of Law?

Shecaira, Fábio

Pages: 9 –22

[The purpose of this chapter is to begin the construction of an account of the general concept of a source of law. Depending on context, sources of law will be understood either as agents authorized to make law or, relatedly, as products (e.g. statutes and judicial decisions) resulting from the...
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Chapter 3Sources and Reasons

Shecaira, Fábio

Pages: 23 –34

[This chapter continues to develop an account of the general concept of a source of law. It does so by associating sources of law with content-independent reasons for action (a Hartian concept). Sources of law are things (such as documents and practices) systematically treated by judges as...
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Chapter 4Legal Scholarship as a Source of Law

Shecaira, Fábio

Pages: 35 –60

[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...
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Chapter 5Formalism and the Use of Legal Scholarship

Shecaira, Fábio

Pages: 61 –75

[The chapter assesses—and rejects—an association commonly made by comparative lawyers between “formalism” or “positivism,” on the one hand, and lack of judicial reference to legal scholarship, on the other. It is argued that formalism and positivism, understood as judicial attitudes denying the...
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Chapter 6Normative Questions

Shecaira, Fábio

Pages: 77 –83

[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....
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Chapter 7Conclusion

Shecaira, Fábio

Pages: 85 –90

[The conclusion contains a brief summary of the content of previous chapters. It also addresses some objections against the book’s account of legal scholarship as a source of law that were not explicitly considered in earlier chapters. It is argued that these objections are based on a common...

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