Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer ‘say-so’ of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, ‘doctrinal’ or ‘dogmatic’ legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars ‘authorities’? Is p, as advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions.
Fábio Perin Shecaira, Legal Arguments from Scholarly Authority, Ratio Juris, volume 30, issue 3, pages 305–321, September 2017.