by Claudio Michelon, Professor of Philosophy of Law, University of Edinburgh
Never has so much been written about the law by so many. This phenomenon can be perceived across many jurisdictions and in practically all areas of law. This growth results from the confluence of many factors, among which the fact that there is progressively more law to be explained, analysed and critiqued, and the broadened access to legal education which, in turn, allows for greater specialization in fields and subfields of the law. The structure of legal academia, in particular the imperative to “publish or perish” surely also plays a role here. But whatever the causes, we are left with a hefty corpus of legal literature. Thus, it is perhaps worth thinking about what, in this ocean of legal writing, could possess authority, and why.
This is a more difficult task than might appear at first sight. Doctrinal scholarship operates in many different registers, making different types of claims and mobilizing different types of reason to vindicate these claims. Doctrinal scholars sometimes write about how authoritative sources (legislation, precedent-setting judicial decisions, etc) shape the normative landscape within a legal system, outlining how these sources set necessary and/or sufficient conditions for certain legal positions (rights, duties, liberties, powers, etc) to emerge. At other times, we criticise a certain legal development by making unapologetic normative claims about what we take to be a disastrous new decision or piece of legislation (without denying their authority). In fact, we make different kinds of normative claims about the law. A case might be said to have been poorly decided because of its (i) predictable adverse social consequences, or because (ii) it does not cohere with the body of law within the specific field, departing from established principle for no good reason, or perhaps for (iii) epistemic reasons such as its obscurity, inter alia.
So, doctrinal scholars make various types of claims and provide a variety of reasons to support them: descriptive and normative, epistemic and practical, and, within the latter, consequence-based and principle-based reasons. The difficulty grows exponentially if we factor in the style in which many of those claims are made. Doctrinal scholars often appear to be arguing about concepts (what counts as “unjustified enrichment”? As “consideration”? As “good faith”? As “provocation”?), as well as the relations between concepts (is an X an instance of a Y?) and even the usefulness of certain concepts (is there a place for the broad category of “juridical acts” in Scots Law?).
Thus, doctrinal scholarship does not do one thing, but many.
This broad brushstroke characterization of the claims and rational “moves” carried out by doctrinal scholars invites many questions and it would be impossible to do justice to all of them in a full-length academic article, let alone a blog entry. But it is possible to shed some light on two related and important (in fact, I believe, crucial) questions about doctrinal scholarship: should claims made by legal scholars be treated as, in some way, authoritative? If so, what is the basis on which this authority might rest?
To do so, it is prudent to start by clarifying what I mean by “authority”. A claim made by someone is authoritative if it can, by itself, generate reasons. These reasons can be of two kinds: one can have a reason to do something (if the claim is made by someone possessing practical authority) or a reason to believe that something is the case (if the claim is made by someone possessing theoretical authority). Thus, if the Scottish Parliament, acting within its competences and according to the relevant procedure, states that there is an intermediate rate of income tax levied at 21%, residents in Scotland who fall within that bracket now have a reason to do something: to pay income tax at the intermediate rate. The Scottish Parliament in this situation possesses practical authority. If, on the other hand, your GP tells you that you do not have a bacterial infection in your left ear, you now have a reason to believe precisely that. So, when we say that a particular statement is authoritative, all we are saying is that the mere say-so (in our examples, of the Scottish Parliament and of the doctor) is sufficient to give you a reason to either do something (pay a certain amount in income tax) or believe something (that you do not have a bacterial infection in your left ear). Authoritative reasons can be contrasted with substantive reasons that you have without any need for authoritative “mediation”: the fact that it is raining is a reason for me to bring my umbrella with me when I leave the house and that does not depend on anyone saying anything about it.
Of course, having an authoritative reason does not mean that you need to abide by that reason, as other facts might be pulling in the opposite direction (perhaps your aunt is also a doctor and she believes you do have, after all, a bacterial infection in your left ear). A reason is simply a fact that counts in favour of doing or believing something. In the case of authoritative reasons, that fact is simply the say-so of the authority.
With that in place, we should then ask which type of authority legal scholarship could plausibly possess. Doctrinal scholarship can only possess practical authority in very exceptional circumstances. Perhaps the best-known example of a widespread practice of taking doctrinal scholarship to be able to generate reasons for action is the use of writings by the Scottish institutional writers in Scottish courts. The expositions of Scots Law by John Erskine and Joseph Bell, for instance, have been regarded in Scotland by many, at certain times, as more than simply sophisticated accounts of Scots law, but as an independent source of legal reasons for action. It is unclear whether these legal reasons have the same “protected” nature as the ones generated by other legal sources, such as legislation and binding precedent. We often think of legislation or binding precedent not simply as providing a reason for action, but as providing the reason for action because they not only count in favour of doing something, but also exclude any other perfectly plausible reasons from bearing on the matter at hand. In legal theory lingo, legislation generates both a reason for action and a reason to exclude other reasons from bearing on the matter. Perhaps the writings of an institutional writer are only able to generate non-exclusionary practical reasons (a topic to be explored at some other occasion).
However that might be regarding Scotland’s institutional writers, it is not plausible to claim that doctrinal scholarship in general is able to generate reasons for action. Thus, in most cases, a claim regarding doctrinal scholarship’s authority would be best interpreted as referring to the theoretical authority, rather like the reasons for believing the diagnosis of the medically qualified GP that I mentioned earlier. Accordingly, the claim is that doctrinal scholarship is able to generate reasons to believe something about the law. But how could this claim be vindicated? What gives someone’s say-so about the law theoretical authority?
Presumably, an answer to that question stems from the authority’s ability to help those under it hold a true belief about the matter at hand. In Joseph Raz’s popular “service conception” of authority, that is cashed out as something like this: one is more likely to hold a true belief by believing what the putative authority tells them to believe than by following their own lights. But this is perhaps too strong, certainly stronger than needed for my purposes here: all that is needed is that the reason generated by the authority’s say-so is likely to contribute to my holding the right opinion on a point about the law (if I reason correctly). This is a very common phenomenon across different areas of social life. Pace Michael Gove and conspiracy theorists, people often (and rightly) allow their beliefs to be influenced by expert opinions on, say, how best to invest their money, medical diagnoses put forward by doctors, and the virtual scientific consensus on man-made climate change, inter alia.
But what could warrant a claim that a particular legal scholar or work of legal scholarship should be treated as possessing theoretical authority? I suspect the right answer to that question would differ significantly over time. A century ago, the ability to precisely recollect a vast number of cases and other legal sources might have been the core of what gives credence to a claim that “X should be treated as having theoretical authority”. In fact, the mere access to, and the ability to navigate within, the few specialized libraries that contained the relevant legal materials would also lend credence to this claim. But in an age of online databases in which such information can be easily accessed (and double checked) by most lawyers, these abilities and circumstances, albeit still desirable, are no longer part of the core case for doctrinal authority.
Other abilities, however, have always been, and remain, central to good doctrinal scholarship and, if a legal scholar and her claims about the law turn out to enjoy theoretical authority, the vindication of that authority would be grounded on the possession of these skills. One of the most important of them is the ability to identify and articulate principles and, more broadly, normative programmes (sets of complexly related principles), that underpin one or more formal legal sources (precedents, legislation, legal custom, etc), the legal rules they convey and concepts they employ. These principles live or die by their ability to explain these sources, but it is worth pausing to reflect on what precisely this type of explanation consists of. “Explain” here is not simply a matter of providing an account of what makes the particular “text” into a formally valid legal source (e.g. that an Act of Parliament was passed according to the appropriate procedure, or that a particular decision by a given court is binding according to the doctrine of precedent), neither is it a historical explanation of how some law came to be part of the legal system (or of their more remote legal pedigree). These are, of course, worthwhile questions but they only relate laterally to the type of explanation typical of the best legal scholarship.
That typical explanatory project which we find in the best legal scholarship is normative in nature. When engaged in this endeavour, a legal scholar asks how a relevant set of legal sources (and the rules and concepts they contain) could fit together in a coherent normative programme. How can we see this explanandum as offshoots of the same justificatory principle or principles? The explanation doctrinal legal scholars produce is a type of normative justification. This is not, however, an unconstrained moral justification. The doctrinal legal scholar is not a moral philosopher. What she produces is a conjectural justification by asking what, if anything, could make normative sense of these material as a coherent whole.
To see the difference just consider the fact that there would be no contradiction between a legal scholar claiming that, say, (a) the best way to make normative sense of the three Rs of the Scottish law of restitution (the rules that impose duties in cases of Restitution, Repetition, Recompense) is to postulate a underlying principle that determines the restitution of all types of unjustified enrichment and (b) that the principle of unjustified enrichment is ethically unsound and should be abolished from Scots law. The reason why there is no contradiction between the two statements is that each makes a different type of normative claim. The first is normatively conjectural: if these doctrines were a unified whole under a principle, what would that principle be? The second is moral: what should the law be in Scotland in cases currently covered by the three Rs? They might even yield the same answer (if the best explanation for the actual law happens also to be the best principle, all things considered, that morality would recommend be included in the particular legal system), but that does not change the different nature of the question asked.
In turn, this sort of normative explanation could be (and is) used in a myriad of ways: it can shape the interpretation of the relevant sources, offer grounds to support analogical arguments, plug gaps in normative landscape, help adjudicate between conflicting legal sources, inter alia.
As will be apparent to the reader, this way of addressing the question raises many further questions: what are the credentials of doctrinal legal scholars to make normative claims, even if conjectural and tentative ones? What – if anything – can ground the claim to expertise – to privileged epistemic access – in relation to these kinds of questions? What types of argumentative and logical tools can be used in the process of producing such normative explanations (inferences to the best explanations, legal analogies, etc)? What types of claims count as objections to explanations of this kind? How are the partial sets that constitute a relevant legal explanandum to be identified (e.g. why should the three Rs require a unified explanation)? What weight should be given to this type of doctrinal work by judges, lawyers, and others? Relatedly, and more to the point of this entry: is this form of explanation sufficient to justify a legal scholarly claim as authoritative and, if so, in relation to whom?
I fear that, in trying to answer one difficult question, I ended up producing many more such questions. For a reader hoping for a clear-cut answer to my original question, ending in aporia will be frustrating. The only consolation I have to offer is the fact that, sometimes, progress is made by trading up on questions.
A note on further literature
For those who have had their interest picked by some of these issues addressed above, here are some recommendations for further reading. Fabio Shecaira’s Legal Scholarship as a Source of Law (2nd ed Springer 2024) is the best available theoretical discussion of legal scholarship’s authority (although the reader will notice a few points in the text above in which Shecaira and I might not see eye to eye). John Gardner and Timothy Macklem provided an excellent way into the topic of authoritative reasons in their work entitled: ‘Reasons’, published in The Oxford Handbook of Jurisprudence and Philosophy of Law (OUP 2004) p. 466. There is very interesting work done on the practices of courts citing scholars, including van Caenegem’s well-known Judges, Legislators and Professors (CUP, Cambridge 1987) and, Alexandra Braun’s ‘Burying the Living?’ in (2010) 58 The American Journal of Comparative Law 27. Specifically on the (changing) authoritative status of Scottish institutional writers, I would strongly recommend John W Cairns’s ‘Institutional Writings in Scotland Reconsidered’ (1983) 4 Journal of Legal History 76. Finally, I addressed ways in which we can argue to and from conjectural normative principles in my ‘The Inference to the Best Legal Explanation’ (2019) 29 OJLS 878.
