Frederick Schauer (Harvard University – John F. Kennedy School of Government) has posted Authority and Authorities (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
And from the text:
in reality the status of an authority as an authority is the product of an informal, evolving, and scalar process by which some sources become progressively more and more authoritative as they are increasingly used and accepted. It was formerly the practice in English courts, for example, to treat as impermissible the citation in an argument to (or, for a judge, in an opinion to refer to) a secondary source written by a still-living author. If the author of a treatise or (rarely) an article were dead, then citation was permissible, but not otherwise. The reasons for this practice remain somewhat obscure, but that is not important here. What is important is the fact that the prohibition gradually withered, a withering that commenced more or less with the citation by the House of Lords in 1945 to a work by the then-still-living Arthur Goodhart.85 Once the first citation to a living secondary author appeared, subsequent courts became slightly less hesitant to do the same thing, and over time the practice became somewhat more acceptable.
There is nothing unusual about this example. Although H.L.A. Hart made famous the idea of a rule of recognition,86 it is rare that formal rules determine what is to be recognized as law (or a legitimate citation or reference in a legal brief or argument or opinion). Rather, as Brian Simpson has insightfully described,87 the recognition and non-recognition of law and legal sources is better understood as a practice in the Wittgensteinian sense, a practice in which lawyers, judges, commentators, and other legal actors gradually and in diffuse and non-linear fashion determine what will count as a legitimate source and what will not, and thus will, in the same fashion, determine what will count as law and what will not.
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