OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, N.º 1

May-October 2025

520

CRITICAL REVIEW

SHECAIRA, FÁBIO PERIN (2024). LEGAL SCHOLARSHIP AS A SOURCE OF

LAW. SPRINGER. SECOND EDITION. HTTPS://DOI.ORG/10.1007/978-

3-031-60369-3 978-1-5266-0518-4

SYED MUJTABA ATHAR

syed.athar@symlaw.edu.in

Assistant Professor at Symbiosis Law School (SLS) NOIDA Campus, Symbiosis International

(Deemed) University, Pune (India). He has been a doctoral residential fellow at the

Hague Academy of International Law, the Hague for the year 2022. He specialises in

areas such as constitutional law, international law, family law, and legal theory. He has

contributed to the legal field through publications in various law journals and has

participated in numerous national and international conferences. In addition to his

teaching responsibilities, he is actively involved in legal research and has guided several

postgraduate students in their academic pursuits. https://orcid.org/0000-0002-5355-

3077

The book presents a conceptual framework for analysing the application of precedent in

civil law and common law systems. The suggested paradigm emphasises the

differentiation between legal sources (e.g., precedents) and the legal norms that can be

extracted from these sources through legal interpretation. Standard arguments from

authority possess the subsequent structure: A asserts p; A possesses authority on such

matters; hence, p is valid. Legal practitioners employ such arguments when they base

their decisions only on the assertions of lawmakers, judges, professors, expert witnesses,

and similar authorities. This paper examines arguments that invoke the authority of

scholars, namely 'doctrinal' or 'dogmatic' legal scholars. The reliance on doctrinal

authority is a perplexing aspect of legal reasoning. The tripartite distinction of 'source-

interpretation-norm' (referred to in the title as the 'source-norm' distinction) elucidates

the diverse methods by which historical instances can be cited, interpreted, and applied

by the courts of various legal systems. The proposed framework aims to elucidate the

function of precedent in legal systems with limited international discourse, while also re-

examining the practices of legal systems where the doctrine of precedent is ostensibly

well-established and comprehended.

The book substantially enhances the comprehension of legal scholarship's significance as

a source of law. The author methodically deconstructs the case using theoretical

foundations in Part I, thereafter examining practical consequences in Part II. The

transition from fundamental legal sources to intricate analyses of scholarly authority and

jurisprudence illustrates advanced academic rigour. The examination of formalism and

its connection to legal scholarship is especially significant, as it contests conventional

beliefs on the function of academic endeavours in legal reasoning.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL 16, Nº. 1

May-October 2025, pp. 520-523

Shecaira, Fábio Perin (2024). Legal Scholarship as a Source of Law. Springer. Second Edition.

https://doi.org/10.1007/978-3-031-60369-3

Syed Mujtaba Athar

521

The framework advances systematically from theoretical underpinnings to practical

applications, with each chapter enhancing prior notions while ensuring consistent

references throughout. The organisation of the book embodies a comprehensive scholarly

analysis of the function of legal scholarship within legal systems.

This introduction examines the theoretical foundations upon which this study of legal

scholarship as a legal source is based. The fundamental intellectual apparatus employed

in discussing sources of law broadly and legal scholarship specifically is a Hartian

conceptual framework. The author does not approve every particular aspect of H. L. A.

Hart's jurisprudence but supports the fundamental principles of Hart's legal positivism.

A Hartian perspective, assumed in this book, entails a conceptual link between legal

sources and what Hart referred to as "content-independent" grounds for action. Chapters

2 and 3 elaborates on these elliptical statements, clarifying the concept of a criterion of

legal validity and its relationship to the notion of a source of law, while also offering a

comprehensive explanation of the sometimes misconstrued concept of content-

independence.

The judicial application of legal scholarship is among the most complex and ambiguous

facets of judicial reasoning. Generating a credible explanation of this phenomena through

a Hartian conceptual framework could effectively demonstrate the framework's

explanatory capacity. Considering the current impasse in the discourse between Hartians

and their non-positivist adversaries, it may be beneficial to use an arguing approach that,

while not innovative, has not been employed as frequently or as methodically as

warranted. The author contends that the assertion of analogous practices among these

many courts may lead the reader to perceive a preference for a simplistic functionalist

perspective on comparative law. Nevertheless, the author concedes that the majority of

jurists possess differing views regarding the influence of legal scholarship on judicial

decision-making. The author expresses concern that an overemphasis on doctrinal

distinctions among jurisdictions may hide functional similarities. Decisions from their

courts of appeal are often given significant deference by subordinate courts,

notwithstanding the formal rejection of stare decisis. The doctrinal distinction is crucial,

as precedent frequently serves analogous functions in the thinking of common law and

civil law courts.

In a comparative analysis of judicial reliance on legal scholarship undertaken in chapter

4, the author contends that in many jurisdictions, courts regard legal scholarship as a

source of content-independent justifications for action. Nonetheless, that chapter has

minimal discourse on doctrinal discrepancies, as such variations are likely to cause

confusion to the reader. The primary role of legal theorists, which underpins their

significant impact on the evolution of law in Continental European nations, has

consistently been to offer direction for the administration of justice. In nations within the

"common law" sphere, where legal scholarship holds minimal significance, the role of

offering guidance for judicial determinations is infrequently realised, and legal authors

and academics typically confine themselves to delineating and organising the established

statutory and case law. Historically, England distinguished itself from other jurisdictions

by adhering to a rule that prohibited the citation of live authors. Even during the

convention's enforcement, certain prominent living writers' opinions appeared to

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL 16, Nº. 1

May-October 2025, pp. 520-523

Shecaira, Fábio Perin (2024). Legal Scholarship as a Source of Law. Springer. Second Edition.

https://doi.org/10.1007/978-3-031-60369-3

Syed Mujtaba Athar

522

influence court thinking in a manner scarcely dissimilar from the impact of academic

opinions in nations where jurists are explicitly acknowledged as sources of law.

Chapter 5 contests the presumption that judges' inclination to utilise legal knowledge

varies based on their willingness to limit their discretionary powers. The exact

relationship between the absence of judicial reliance on legal scholarship and the desire

to eliminate personal judgement necessitates an examination of the complex

interrelations among the utilisation of research, substantive argumentation, and

discretionary authority.

Chapter 6 examines normative enquiries on the appropriate circumstances and methods

for judges to utilise legal literature. The author offers broad observations on errors to be

avoided by individuals exploring normative enquiries, specifically advising that judges in

democratic nations should engage with legal scholarship transparently. The assertion that

they might neglect to do so is exemplified by two rulings rendered by the Supreme Court

of Canada.

In conclusion, Chapter 7 encapsulates the content of Chapters 1-6 and responds to

criticisms posed against the characterisation of legal research as a source of law. These

criticisms are based on a fundamental error: conflating general issues regarding sources

of law with specific challenges pertaining to the concept of legal research as a source of

law.

Part II comprises five supplementary chapters that enhance and elaborate on the

narrative presented in Part I, corresponding to the chapters in Part I. Chapter 8 offers

further justification for differentiating between sources of law and legal norms, whilst

Chapter 9 elaborates on key concepts by elucidating the circumstances and mechanisms

through which legal research serves as a practical authority in judicial reasoning. Chapter

10 ascends the hierarchy of abstraction by examining the interplay between legal theory

and conventional legal studies, positing that modern legal theory might gain from a more

intimate engagement with traditional legal scholarship. Chapter 11 synthesises and

consolidates the principal concepts from Chapters 8-10 for enhanced clarity.

The book's approach for the source-interpretation-norm distinction may overly simplify

the complexity and variability of precedent application in practice. Various courts, even

within the same jurisdiction, may apply precedents with differing levels of rigidity, a

matter that is inadequately addressed. Secondly, the book predominantly embraces a

formalist viewpoint on legal reasoning, potentially marginalising critical legal theories or

alternative techniques, such feminist legal theory, postcolonial studies, or critical race

theory. These viewpoints may enhance the analysis's depth. Third, while the book

endeavours to reconcile common law and civil law traditions, its examination of the

interplay between two systems is somewhat superficial. An in-depth examination of the

cross-pollination of ideas across these traditions could augment their significance for

comparative legal studies.

Notwithstanding these constraints, the book is a significant contribution to legal study by

offering a systematic framework for comprehending the function of precedents and

doctrinal knowledge in legal reasoning. Mitigating these constraints could augment the

book's scholarly and practical value.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL 16, Nº. 1

May-October 2025, pp. 520-523

Shecaira, Fábio Perin (2024). Legal Scholarship as a Source of Law. Springer. Second Edition.

https://doi.org/10.1007/978-3-031-60369-3

Syed Mujtaba Athar

523

How to cite this critical review

Athar, Syed Mujtaba (2025). Shecaira, Fábio Perin (2024). Legal Scholarship as a Source of Law.

Springer. Second Edition. https://doi.org/10.1007/978-3-031-60369-3. Janus.net, e-journal of

international relations. VOL. 16, Nº. 1, May-October 2025, pp. 520-523. DOI

https://doi.org/10.26619/1647-7251.16.02.1.