Chapter 15
Secondary Sources
Introduction
Formulating a Rule
Illuminating an Argument
Persuading a Court
Introduction
Courts sometimes refer to secondary sources of law, usually textbooks or
articles in a journal or periodical, in their judgments as they interpret law.
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When courts use and cite secondary sources in their judgment the question
arises as to the use that can be legitimately made of them for interpreting law or
other purposes. There are three possible uses. One does not involve
interpretation. It consists of formulating a common law rule. The second
involves assisting interpretation by illuminating arguments on a disputed
question. The third use bears
directly on interpretation. It entails the text
becoming a persuasive source as to the meaning of an ambiguous provision.
Before considering these uses, there is a preliminary matter. In times past, use
of secondary sources by courts was dominated by an alleged rule that courts
could not refer to a text while the author was still living.
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As Lord
Buckmaster put it, “[in this case] law books give no assistance because the
works of living authors, however deservedly eminent, cannot be used as
authorities”.
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This rule had a practical basis. If an author was alive, there
could be conflict or embarrassment if the author was appearing in, or judging,
a case and had to argue for or against their own point of view. Thus the live
author rule was a rule of etiquette designed to avoid this problem.
Today courts are generally not restrained by this former rule. Secondary
sources are often cited in judgments, regardless of whether the author is still
living.
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See Feldman (1989); Chesterman and Weisbrot, (1987); Tushnet (1987);
Wilson (1987). For discussion and empirical studies
of citation of secondary
sources see Smyth (1998), Smyth (1999), Smyth (2000), Smyth (2002), McCormick
(1996), Ramsay and Stapledon (1997), Warren (1996). Snyder (1987) examines the
influence of the great authors (eg Shakespeare, Plato and Hobbes) on the Supreme
Court.
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Winfield (1925) pp 253-256
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Donoghue v Stevenson [1932] AC 562, 567 per Lord Buckmaster
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Castles (1992) pp 94-95
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