Legal Arguments from Scholarly Authority

The chapter discusses the relationship between scholarship and authority by means of argument analysis. Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so, p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, and expert witnesses. This chapter focuses on arguments appealing to the authority of scholars, especially “doctrinal” or “dogmatic” legal scholars. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? Is p, as advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The chapter addresses these questions.