This might be a weird question but can academic writings be a source of unwritten law like customary law ? And do things like customary law and something like this require a judiciary to interpret or deduce it ?
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3That which is written can't be unwritten.– IKnowNothingJan 9 at 13:03
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2Which jurisdiction? By "customary law" do you mean "common law"? Also hard to see how "academic writing " could be part of " unwritten law" - but maybe if you defined your terms, it would help. Please edit your question to clarify it.– Martin Bonner supports MonicaJan 9 at 13:15
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2@IKnowNothing I think that it is fair to read the term "unwritten law" in this context as really meaning non-statutory law, in the same sense that we talk about the British constitution being "unwritten" when it is in fact scattered across written statutes and commentaries. It is really just a secondary meaning of that word.– ohwillekeJan 9 at 19:18
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2 Answers
In practice, common law courts turn to academic writing, either law review articles or legal treatises or the "Restatements of Law", on a regular, but infrequent basis. These sources are not binding sources of legal authority but can shed persuasive light on the logic behind a legal rule or the course of action that has been taken in previous similar cases.
In civil law countries (i.e. those not descended from the legal system of England), there are far fewer circumstances in which court precedents are sources of law. Much of the gap in credible sources for how ambiguities in the statutory law should be interpreted in these countries comes from academic writing. In a typical civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judges. Again, academic writings are not binding legal authority, but in the absence of alternative sources for material interpreting statutes, they are very persuasive.
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In a typically [sic] civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judgesis certainly incorrect in France. There is no statute that says rulings by higher courts are binding on lower courts, but in practice they are; on the other hand legal commentary is at best persuasive. Do you have a specific jurisdiction in mind and/or a source?– KFKJan 10 at 14:41 -
@KFX Even in France, academic writing is much more jurisprudentially important than in common law countries in terms of its relative influence. Jan 10 at 15:16
In Shari`ah law, there are two authoritative sources of law, the Qur’an and the Ḥadith. However, sometimes things are not crystal clear, and there may be need to engage in legal reasoning beyond taqlid which is precedent based on “consensus” (ijma`). In that case, a legal scholar may be required to engage in ijtihad, i.e. legal reasoning. Such a writing cannot (by definition) be authoritative, but it can be persuasive, in that it might be relied on to resolve a case.
