Introduction

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 approaches a comparative analysis of the judicial use of legal scholarship. The main purpose of this introduction is to reveal and explain these different substantive and methodological assumptions. The assumptions will not be explicitly defended, although the whole book might be regarded as providing an “indirect” defense of them. The introduction also provides an overview of the content of the book’s chapters. The initial chapters are meant to clarify the general notion of a source of law. Once that notion is clarified, legal scholarship will become the main focus of attention. Part I is mostly concerned with conceptual and empirical issues pertaining to the use of legal scholarship by judges. Part II develops the account provided in Part I and replies to critics.