Legal Scholarship as a Source of Law
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Beschreibung
This book offers a philosophical analysis of the role played by legal scholarship in the written judicial decisions of different Western legal systems. Based on a positivist (and, more specifically, Hartian) theory of law, the book discusses the concept of a source of law and the possibility of including within that concept the writings of legal scholars. It also discusses the concept of authority and the structure of authority-based arguments, such as those that judges often employ when referring to legal scholarship in their judgments.
This book offers a philosophical analysis of the role played by legal scholarship in the written judicial decisions of different Western legal systems. Based on a positivist (and, more specifically, Hartian) theory of law, the book discusses the concept of a source of law and the possibility of including within that concept the writings of legal scholars. It also discusses the concept of authority and the structure of authority-based arguments, such as those that judges often employ when referring to legal scholarship in their judgments.
Deals with conceptual, empirical, logical, and normative questions on the use of legal scholarship by judges Illustrates the value of the Hartian framework for the purpose of analyzing specific aspects of judicial practice Draws on lessons learned in different jurisdictions and engages with the work of both common-law and civil-law jurists
Autor*in
Fábio Perin Shecaira
Themen in »Legal Scholarship as a Source of Law«
Authorativeness of sources of law Challenging the Association Content Independent Reason Decline of Juridical Reason Distinction between mandatory and permissive sources of law Distinguishing souces of law from criteria of validity Formalism and Lack of Reference to Scholarship Formalism and the Use of Legal Scholarship H.L.A. Hart Legal Argumentation Legal Scholarship as a Source of Law Legal scholarship as a source of law within positivism Potential of Legal Scholarship Rule of Law Sources of Law and Judicial Argument