Legal Scholarship as a Source of Law

Nonfiction, Reference & Language, Law, Reference, Religion & Spirituality, Philosophy
Cover of the book Legal Scholarship as a Source of Law by Fábio P. Shecaira, Springer International Publishing
View on Amazon View on AbeBooks View on Kobo View on B.Depository View on eBay View on Walmart
Author: Fábio P. Shecaira ISBN: 9783319004280
Publisher: Springer International Publishing Publication: July 9, 2013
Imprint: Springer Language: English
Author: Fábio P. Shecaira
ISBN: 9783319004280
Publisher: Springer International Publishing
Publication: July 9, 2013
Imprint: Springer
Language: English

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.​  

View on Amazon View on AbeBooks View on Kobo View on B.Depository View on eBay View on Walmart

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.​  

More books from Springer International Publishing

Cover of the book Teaching and Researching the Pronunciation of English by Fábio P. Shecaira
Cover of the book Proceedings of the International Conference on Martensitic Transformations: Chicago by Fábio P. Shecaira
Cover of the book Hydrothermal Processing in Biorefineries by Fábio P. Shecaira
Cover of the book Education for Sustainable Peace and Conflict Resilient Communities by Fábio P. Shecaira
Cover of the book Berichte zur Lebensmittelsicherheit 2013 by Fábio P. Shecaira
Cover of the book Technology Enhanced Learning by Fábio P. Shecaira
Cover of the book Political Violence, Armed Conflict, and Youth Adjustment by Fábio P. Shecaira
Cover of the book Contemporary Slovenian Timber Architecture for Sustainability by Fábio P. Shecaira
Cover of the book Spatial Fleming-Viot Models with Selection and Mutation by Fábio P. Shecaira
Cover of the book Nanoscience in Food and Agriculture 1 by Fábio P. Shecaira
Cover of the book Methods of Small Parameter in Mathematical Biology by Fábio P. Shecaira
Cover of the book Agents and Multi-Agent Systems: Technologies and Applications 2018 by Fábio P. Shecaira
Cover of the book Computer Analysis of Images and Patterns by Fábio P. Shecaira
Cover of the book Robotics in Education by Fábio P. Shecaira
Cover of the book Human Interface and the Management of Information. Information in Intelligent Systems by Fábio P. Shecaira
We use our own "cookies" and third party cookies to improve services and to see statistical information. By using this website, you agree to our Privacy Policy