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Fábio P. Shecaira

Legal Scholarshipas a Source of Law

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Fábio P. ShecairaFederal University of Rio de JaneiroRio de JaneiroBrazil

ISSN 2192-855X ISSN 2192-8568 (electronic)ISBN 978-3-319-00427-3 ISBN 978-3-319-00428-0 (eBook)DOI 10.1007/978-3-319-00428-0Springer Cham Heidelberg New York Dordrecht London

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Where does the court find its law? Where does any onefind law? That part which is not found in the judge’sbreast, in the kind of person he is, in his sense ofjustice, in his education and his environment, must befound in books. What books? We have been taught toanswer: the books containing the statutes and thereported decisions: And it is still a correct answer, asfar as it goes. But—I think we shall have to admit—itdoes not go as far in 1928 as it did in 1828. Courtsrely for guidance not merely on their understanding ofthe statutes, not merely on precedents in their own andother jurisdictions, but also on books, on treatiseswritten by persons whose only authority was thelearning they displayed.

Max Radin, Sources of Law—New and Old

In other words, one may pay attention to thesesdeveloped in legal writing not only because of thequality of the reasons proffered therein, but also dueto the authoritative position that legal writers occupy.It is a well-known phenomenon that a doctoraldissertation gains in authority the moment its authorbecomes a professor of law.

Aleksander Peczenik, Scientia Juris: Legal Doctrineas Knowledge of Law and as a Source of Law

Foreword

What exactly are the sources of law? This is an important question, if onlybecause one of the main responsibilities of a judge in a legal case is to consultwhatever sources of law pertain to her particular jurisdiction and to apply what-ever relevant norms are found therein. On the face of it the answer to our questionis simple and obvious: the relevant sources of law include, paradigmatically: theconstitution, any statutes produced by authorized legislative bodies, and (in atleast all common law jurisdictions) official reports of cases in which authoritativejudicial rulings stand as binding precedents. But this simple answer is far fromcomplete. For one thing, it fails to tell us why these are sources of law. Why arestatutes a source of law in the United States and Germany but Hammurabi’s Codeis not? Jurisprudential theories will divide on how one is to go about addressingthis issue. But the simple answer is incomplete for another, no less importantreason. Sometimes judges seek direction from a range of other sources, particu-larly when the norms derived from the aforementioned standard sources provideinsufficient guidance. In at least some legal systems, judges draw on statutesenacted in other jurisdictions. Or they seek guidance in reports of similar casesdecided in foreign countries with legal systems and legal cultures similar to theirown. Sometimes—indeed more often than most people probably think—judgesdraw on what respected legal scholars have to say on difficult legal questions.Maybe a highly regarded professor of law has, in analyzing a complex line ofdecisions, detected an underlying rule or principle at play. Perhaps no individualjudge in any particular case was consciously aware of this underlying norm orexplicitly invoked it in deciding her case. But the scholar might well have fash-ioned a convincing argument that commitment to the norm explains and justifiesmost aspects of the various judicial decisions that were actually made. Commit-ment to that norm provides those decisions with a kind of coherence hithertounrecognized. If so, a later judge might cite the scholar’s norm when dealing witha new case, one that is not quite the same as those that went before but canarguably be subsumed under the norm that the scholar has identified.

Received wisdom suggests that each of the sources of law discussed in thepreceding paragraph falls neatly into one of two mutually exclusive categories.The first group might be called mandatory sources. These are such that a judge

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must consult them and must apply whatever relevant norms these sources establish.Should these mandatory norms (so understood) fail to provide conclusive guidancebecause, e.g., they are, on the matter before the court, somewhat vague or inde-terminate, or because they impose conflicting demands, then, and only then, is thejudge permitted to consult norms derived from the second category. These wemight call permissive sources. The norms of foreign jurisdictions or the opinions oflegal scholars expressed in their academic commentaries are, according to receivedwisdom, examples of permissive sources of law. That is, judges are permitted, butnot required, to consult them when deciding issues left unresolved by normsderivable from the relevant mandatory sources. Consulting mandatory sources is amatter of judicial duty; consulting permissive sources is a matter of judicialdiscretion. A judge is legally warranted in consulting permissive sources but shedoes no wrong, legally speaking, should she fail to do so.

In this groundbreaking exploration and analysis of this standard picture, FábioShecaira sets out to establish a third, distinctive category of legal source—what hecalls should-sources. According to Shecaira, certain forms of legal scholarship canand do count as instances of this third source of law. Unlike mandatory sources,which judges are under duty to consult and which issue norms that must, in all butexceptional circumstances be applied; or permissive sources that judges are notrequired to use but which, if used reasonably, provide a significantly weakerreason for deciding one way rather than another; a should-source, in Shecaira’swords, ‘‘should be used and enforced in a sense of ‘should’ that is fairly strong butnot strong enough to count as authoritative’’—as is the case with mandatorysources. It would be a serious legal mistake, Shecaira argues, for judges to ignorelegal scholarship as a source of law, or to dismiss out of hand the norms articulatedin these sources. And to be clear, the argument is not simply that good legalscholarship offers perspicuous descriptions of norms established elsewhere—in,e.g., statutes or court decisions on similar cases. It is that the reflections of legalscholars can be, and indeed in many jurisdictions are, a genuine source of thenorms therein articulated. Legal scholarship can and sometimes does itself serve toestablish law. It does not merely describe, criticize, or recommend changes to lawestablished elsewhere.

This is a bold, innovative thesis that runs deeply counter to much receivedthinking on the nature of law. Establishing its bare plausibility, let alone itsattractiveness as a view to be eagerly embraced, requires the efforts of a scholar ofconsiderable patience, ingenuity and talent. Fortunately, in Fábio Shecaira oneclearly finds such a scholar. There is much in his careful analysis that deserves ourserious attention and should cause us to reconsider our views about how judges goabout deciding cases. And for that all legal scholars should be truly grateful.

March 2013 W. J. Waluchow

viii Foreword

Acknowledgments

This book began as a Ph.D. thesis written in 2011 and defended early in 2012 inthe philosophy department of McMaster University. In writing the thesis, and laterin turning it into a book, I benefited from the assistance of many friends andcolleagues. I am particularly indebted to the following people for their brilliantcomments, challenging criticism, and sound advice: Luís Duarte d’Almeida,Richard Fallon, Michael Giudice, Stefan Sciaraffa, Natalie Stoljar, Noel Struch-iner, Wil Waluchow (my doctoral supervisor), and an anonymous referee forSpringer. Noel and Wil deserve special thanks: they are mentors to whom Iconstantly turn for guidance in all professional matters. I am also very grateful tomy parents, Roseli and Farid, and to my wife, Natália, whose loving support hasallowed me to complete this and many other challenging projects.

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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 What is a Source of Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.1 Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.2 Sources of Law and Judicial Argument . . . . . . . . . . . . . . . . . . 152.3 A Caveat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3 Sources and Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233.1 Authoritative Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233.2 Two Kinds of Sources of Law . . . . . . . . . . . . . . . . . . . . . . . . 29References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

4 Legal Scholarship as a Source of Law. . . . . . . . . . . . . . . . . . . . . . 354.1 Standard Legal Scholarship. . . . . . . . . . . . . . . . . . . . . . . . . . . 354.2 The Potential of Legal Scholarship . . . . . . . . . . . . . . . . . . . . . 44References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5 Formalism and the Use of Legal Scholarship . . . . . . . . . . . . . . . . 615.1 Formalism and Lack of Reference to Legal Scholarship. . . . . . . 615.2 Challenging the Association . . . . . . . . . . . . . . . . . . . . . . . . . . 67References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

6 Normative Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

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