Legal Scholarship and Its Roles in Legal Reasoning

The chapter connects ideas proposed in earlier chapters but up to this point not very clearly related. Legal scholarship is often consulted by legal actors who hope to find in it a clear exposition of the content of positive law. But legal scholarship can also be used as a source of guidance as to how the law should be developed or amended. Although these functions are importantly different, legal scholars are not always clear about the role they intend to play through their writings, and judges are not always clear about how their reasoning is affected by the academic writings that they cite. The purpose of this chapter is to clarify the different functions that may be served by legal scholarship and to consider the implications of this discussion for how we perceive the very subject matter of jurisprudence.