Abstract
The chapter assesses—and rejects—an association commonly made by comparative lawyers between “formalism” or “positivism,” on the one hand, and lack of judicial reference to legal scholarship, on the other. It is argued that formalism and positivism, understood as judicial attitudes denying the exercise of discretion or denying the ability to shape the content of the law by means of the exercise of personal judgment, are not incompatible with the regular use of standard legal scholarship by judges. To use scholarship of the standard variety is to defer to experts. In some legal cultures it is to defer to scientists. Indeed, in hard cases, where mandatory sources of law issue unclear or incoherent prescriptions, scholarship may serve as a formalist judge’s last resort. Scholarship may be used to mitigate the impression that a judge is exercising discretion or relying on personal judgment. It follows that formalist judges have little reason to avoid scholarship; indeed they can use it (and indeed have used it) in their favor.
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Notes
- 1.
It is fairly clear that, in using the term “positivism”, Kötz is not referring to the jurisprudence of such authors as Hans Kelsen and H.L.A. Hart, since their positivism is not a normative theory of adjudication (that encourages judicial self-effacement or makes any other kind of recommendation to judges) but a non-normative theory of legal validity. Like Kötz, Vogenauer (2006, 879) also associates a conception of sources of law that excludes legal scholarship and other secondary authorities with “positivism”. Merryman and Pérez-Perdomo (2007, 23) associate such a narrow conception of sources of law with “state positivism”, although (as the qualifier “state” indicates) they put more emphasis on the fact that the admitted sources are directly associated with agents of the state than on the element of judicial self-effacement. In some jurisdictions judges may refrain from referring to scholarship not only, or not primarily, to suppress the element of personal judgment but because they hold the view that only the state, through its officials, can exercise law-making power.
- 2.
This interpretation of Waddams is offered tentatively, as his comments are brief and superficial (and understandably so, given that they are part of a short book review). If I have got Waddams wrong, what follows may still serve a useful purpose as an assessment of a hypothetical reason for making the association between lack of reference to scholarship and judicial self-effacement. The association is undoubtedly made by Waddams and other authors; the tricky thing is to understand exactly what motivates it.
- 3.
Consider what Markesinis (2000, 297) has to say about legal education in Germany: “… at law school, the aspiring German judge will be taught how to use the codes, learn how to inter-link their various parts (and then combine the Codes with one another) and to begin at least to apply the texts he has been taught deductively. In all this, he will be expected to make as logical and as consistent a use as he can of the many concepts that will be drummed into his head during a period of at least seven… years of training”. Generally, common lawyers are more reluctant to describe their own education in this way, but there are some who are not: “Law school tries to empty the mind of all ‘extraneous’ matter, the better to develop legal skills”. (Friedman 1986, 774) “Prestigious law schools offer courses in sociology, history, or philosophy of law; or in psychology or anthropology of law. But everybody knows that these are elegant frills, like thick rugs in the dean’s office; they have nothing to do with ‘real’ legal education. A school can do without these frills, in a crunch. Indeed, being a frill is precisely what makes these courses valuable, even essential, to an elite law school” (Ibid. 777).
- 4.
Ethical realists, as I am using the expression, make at least three distinct claims: (i) that moral statements are truth-apt; (ii) that some moral statements are true; and (iii) that we, even as imperfect reasoners, can identify some of those true moral statements.
- 5.
Error theorists in particular have been quite ready to accept such a burden. See, for instance, Mackie (1977, 35): “But since this is an error theory; since it goes against assumptions ingrained in our thought and built into some of the ways in which language is used, since it conflicts with what is sometimes called common sense, it needs very solid support;” and Joyce (2001, 135): “A proponent of an error theory—especially when the error is being attributed to a common, familiar way of talking—owes us an account of why we have been led to commit such a fundamental, systematic mistake”. Error theorists typically hold the view that moral statements are truth-apt while insisting that they are all false (given that the facts which they purport to describe do not exist). Not all skeptics are error theorists, of course, but their views are also counter-intuitive insofar as they deny any one of the three realist claims (note 4 supra) that appear to shape ordinary moral discourse.
- 6.
In Canada, the Supreme Court faces this problem virtually every time it considers whether the violation of a Charter right is justifiable under section 1 of the Canadian Charter of Rights and Freedoms.
- 7.
Although I am no expert in the history of English law, it seems to me that Duxbury’s belief in the popularity of the declaratory theory of law (“a theory which was subscribed to by many English judges certainly until the mid-twentieth century” (Duxbury 2001, 66)) should not be accepted without caution. There are studies making the conflicting claim that the declaratory theory met its demise in the nineteenth century (Evans 1987, 68; Bankowski et al. 1997, 482). Indeed, such studies suggest the existence of a link between the supposed demise of the declaratory theory and the introduction into the common law of the doctrine of stare decisis in its modern form (Duxbury raises doubts about this link in a recent book: Duxbury 2008, Chap. 2). Perhaps neither Duxbury nor the authors who would dispute his claim are entirely right. That is to say, the truth may lie somewhere between the two extremes: the declaratory theory may have had some (as opposed to pervasive) influence among English judges while the convention against the citation of living authors was still in force. The fact, however, that the declaratory theory may not have been as popular as Duxbury suggests serves to weaken even further the causal connection he postulates between that theory and the convention against the citation of living authors.
- 8.
In 1950 the Chief Justice of the Supreme Court of Canada precluded counsel from citing the Canadian Bar Review during oral submissions. According to Sharpe and Proulx (2011, 3), this attitude “was ostensibly grounded in the fear of relying on the works of living authors who might later rescind or disavow their published statements”. Sharpe and Proulx also speculate that “more fundamentally, the refusal to look beyond case law and statutes was a product of a highly formalist and anti-intellectual judicial culture…”.
- 9.
The discourse of French judges is not only misleading with respect to the influence of scholarship on their decisions. Comparative lawyers have claimed that the lack of citation to precedent in high courts in France should not obscure the fact that French law “would be incomprehensible without reference to the precedents of higher courts filling gaps in or otherwise supplementing the codes and other formal legal sources”. (Bankowski et al. 1997, 532) On the same point, see Bell (1997, 1248–1253).
- 10.
It is interesting to note that while the existence of a vibrant academic community may serve as an incentive to judicial use of scholarship, academics may also become too influential or too prolific for the tastes of judges and other legal officials. Indeed, concerns of this nature are apparently behind Italian legislation prohibiting citation of legal writers by judges (Braun 2006, 671–675).
- 11.
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Shecaira, F. (2013). Formalism and the Use of Legal Scholarship. In: Legal Scholarship as a Source of Law. SpringerBriefs in Law. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00428-0_5
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