Normative Questions

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. Jurisdictions differ significantly with respect to (among other things) reliability of available scholarly work and judicial ability to understand and apply scholarly ideas. Precise answers to “if-when-how” questions should not be general but must take into account the various needs and particularities of different jurisdictions. It is argued in this chapter that (at least in democratic countries) judges should use scholarship candidly whenever they choose to use it. Examples are given of judicial decisions in which judges refer to scholarship in a way that suggests that it is serving to mitigate discretion when in fact it is not. The point is that this type of judicial decision exhibits an unjustified lack of sincerity.