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020 _a9783319004280
_9978-3-319-00428-0
024 7 _a10.1007/978-3-319-00428-0
_2doi
050 4 _aB65
072 7 _aLAB
_2bicssc
072 7 _aPHI021000
_2bisacsh
072 7 _aLAW000000
_2bisacsh
082 0 4 _a340.1
_223
100 1 _aShecaira, Fábio P.
_eauthor.
245 1 0 _aLegal Scholarship as a Source of Law
_h[electronic resource] /
_cby Fábio P. Shecaira.
264 1 _aHeidelberg :
_bSpringer International Publishing :
_bImprint: Springer,
_c2013.
300 _aXI, 90 p.
_bonline resource.
336 _atext
_btxt
_2rdacontent
337 _acomputer
_bc
_2rdamedia
338 _aonline resource
_bcr
_2rdacarrier
347 _atext file
_bPDF
_2rda
490 1 _aSpringerBriefs in Law,
_x2192-855X
505 0 _aAcknowledgements -- Foreword -- 1  Introduction -- 2  What Is a Source of Law? -- 3  Sources and Reasons -- 4  Legal Scholarship as a Source of Law -- 5  Formalism and the Use of Legal Scholarship -- 6  Normative Questions -- 7  Conclusion.
520 _aThis book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart’s jurisprudence. Indeed, the book’s analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. 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. 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. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.  .
650 0 _aPhilosophy.
650 0 _aPolitical science.
650 0 _aLaw
_xPhilosophy.
650 0 _aLaw.
650 1 4 _aPhilosophy.
650 2 4 _aPhilosophy of Law.
650 2 4 _aTheories of Law, Philosophy of Law, Legal History.
710 2 _aSpringerLink (Online service)
773 0 _tSpringer eBooks
776 0 8 _iPrinted edition:
_z9783319004273
830 0 _aSpringerBriefs in Law,
_x2192-855X
856 4 0 _uhttp://dx.doi.org/10.1007/978-3-319-00428-0
912 _aZDB-2-SHU
942 _2Dewey Decimal Classification
_ceBooks
999 _c45351
_d45351