In this sense, a text can be a source of authority, because it presents the law to
a court in a coherent and meaningful form. This is one reason why lawyers for
parties will cite textbooks to courts. It sets out the rule in an amenable form
prior to analysis of any problems of interpretation. In this loose sense
textbooks are authorities, but the court always has the last word.
Illuminating an Argument
Secondary sources can illuminate the arguments on a disputed question of law.
An opinion in a law book “may demand attention” because a legal writer has
an advantage over the relative haste and confined circumstances that apply to
judicial law making.
498
An author has “the benefit of a broad and
comprehensive study of his chosen subject as a whole, together with a lengthy
period of gestation, and intermittent period for consideration”.
499
Hence, a text
“can enrich legal debate, help to refine or test the validity of arguments of
counsel, and provide new elements of substance to legal discourse which
might otherwise be lacking”.
500
Consequently courts should and do use
textbooks to illuminate arguments even though they can always disagree with a
textbook.
501
Obviously, when a court does use a textbook, its applicability will
depend on such factors as its quality, aim and even ideological leaning.
502
Persuading a Court
A party or judge might try to use a textbook as a persuasive source to indicate
the meaning of a provision.
503
This involves using the text as a form of
precedent where the court adopts the meaning advocated by the text writer.
The question therefore arises as to the persuasive value of a secondary source
and its status as an authority.
504
First, there is a special case. Where the text is an older one it may be
considered authoritative on the basis that the author is reflecting a widely held
point of view at the time, or is relying on cases that were not reported. In this
case the text does have some authority, although because of the circumstances
it is not possible to measure the extent of this authority.
498
Donoghue v Stevenson [1932] AC 562, 567 per Lord Buckmaster
499
Cordell v Second Clayfield Properties [1968] 3 WLR 864, 872 per Megarry J
500
Castles (1992) p 92
501
Bastin v Davies [1950] 2 KB 579 per Lord Goddard
502
For discussion of legal text writing see Castles (1992), Feldman (1989),
Chesterman (1987), Tushnet (1977), Tushnet (1987), Wilson (1987).
503
For the use of secondary sources in Australian courts see Castles (1992). For
the influence of secondary sources on the United States Supreme Court see Snyder
(1987).
504
Snyder (1987)
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