Legal Scholarship as a Source of Law

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 scholarship; it might also be described as “legal dogmatics,” a term more commonly used in the civil law world. The chapter goes on to discuss—and reject—some arguments to the effect that legal scholarship (standard scholarship included) cannot or does not function as a source of law. Arguments about what scholarship cannot do may be interpreted as conceptual arguments; arguments about what scholarship does not do are empirical arguments. Arguments of each type receive an appropriate type of rebuttal. Evidence is given of the use of standard legal scholarship as a source of law in modern jurisdictions. Scholarship is frequently used as a permissive source of law, but it has also occasionally attained the status of a “should-source”.