Legal Scholarship as a Source of Law (SpringerBriefs in Law)

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WHEN DOES A CUSTOM BECOME LAW in JURISPRUDENCE - Historical & Analytical Theory of Jurisprudence

Buy Softcover. FAQ Policy. About this book This book is about the use of legal scholarship by judges.

Legal Scholarship as a Source of Law (SpringerBriefs in Law)

Show all. What is a Source of Law? Show next xx. Read this book on SpringerLink. Recommended for you. Chapter 4 argues that legal scholarship — or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal — can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law and thus as a source of content-independent reasons for action may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism.


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This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not.

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The concluding chapter addresses potential objections not explicitly discussed in earlier chapters. See All Customer Reviews.

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by Shecaira, Fábio P

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Overview This book is about the use of legal scholarship by judges. Product Details Table of Contents.

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Legal Scholarship as a Source of Law

Table of Contents Acknowledgements. Average Review. The conclusion that legal scholarship is used as a source of law and thus as a source of content-independent reasons for action may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6.

Legal Scholarship as a Source of Law | Fábio P. Shecaira | Springer

It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not.

The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.